' This is a revision petition against the judgment and decree, dated 4-7-1994 passed by Ch. Karamat Ali, the then learned Additional District Judge, Lahore, whereby, he accepted the appeal of the present respondent/defendants against the petitioner/plaintiff and dismissed the suit of the petitioner/plaintiff which was decreed by Ch. Muhammad Din Basra, the then learned Civil Judge 1st Class, Lahore vide his judgment and decree, dated 20-7-1991.
2. It is contended by the learned counsel for the petitioner that the petitioner/plaintiff instituted a suit for possession through specific performance of agreement of sale, dated 12-2-1974 (Exh.P.W.3/3) and the subsequent agreement, dated 19-3-1974 (Exh.P.W.3/4), whereby the predecessor-in-interest of the present respondents/defendants had agreed to convey land measuring 23 Kanals and 2-1/2 Marlas situated in village Niaz Baig, Tehsil and District Lahore to the petitioner/plaintiff for a consideration of Rs,25,000 out of which he had received Rs,13,500 as earnest money. The suit was contested by the respondents/defendant on the ground that the original executant of the agreements namely Allah Bakhsh alias Ahmad Bakhsh had died before the suit was filed. It was also contended by the respondents/defendants that Ahmad Bakhsh a forenamed had never appointed any attorney nor did he execute the agreements in question in respect of the land in dispute. It was added that the suit in the Court below was filed by the petitioner/plaintiff in collusion with Malik Ziaullah, Advocate i,e, respondent/defendant No,17 as attorney; lastly, it was alleged that the suit was badly time-barred as the agreements in question were executed on 12-2-1974 and 19-3-1974 respectively and no time limit was prescribed for their performance, as such, under the Limitation Act, the suit was required to be filed within three years of the refusal to execute the sale-deed which had allegedly expired long ago but the suit was filed on 27-3-1985. The learned trial Judge framed the issues on the controversial points and came to the conclusion that Malik Ziaullah aforenamed was duly appointed as attorney by Ahmad Bakhsh i,e,, the original owner, and had entered into the aforesaid agreements on behalf of aforenamed Ahmad Bakhsh and as such, had received .The consideration mentioned therein. The agreements were held to be valid in the eyes of law and a decree for their performance was granted to the petitioner/plaintiff subject to the payment of the remaining sale-price of Rs,11,500 within a period of one month. On the question of limitation, it was held that since the original owner was pitched in litigation both on the civil as well as settlement side resulting into the filing of the writ petition in the High Court, wherein, operation of the order of settlement authority was suspended, thereby, suspending the a ownership of the property in question, therefore, the time limit was required to be reckoned from the date of decision of the writ petition in the High Court on 11-4-1984 vide order Exh.P.W.6/13, as such, the present suit from the aforesaid date having been filed on 27-3-1985 was within time. It was also held that the execution of the agreements of sale in question was admitted by the attorney of the respondents/defendants namely Sajid Manzoor while appearing as D.W.1. He also admitted that their predecessor-in-interest namely Ahmad Bakhsh had entered into sale- deed previously with the petitioner/plaintiff in a different transaction through the same attorney namely Malik Ziaullah and the said transaction was 'never challenged. That execution of agreement as well as additional agreement was specifically proved through a marginal witness as well as through its scribe. Even the aforesaid attorney of the respondents/defendants had admitted the execution for power of attorney in favour of Malik Ziaullah but had contended that since the deceased owner had lost confidence in him, therefore, he used to receive the transacted money himself and also appeared in all the transaction in which he had genuinely acted. It was, therefore, contended that the power of attorney having been duly executed and the agreements in question having been proved, the learned Additional District Judge fell in gross error to non-suit the petitioner/plaintiff on the ground that the power of attorney was never executed in respect of the land in question.
3. Learned counsel for the respondents/defendants, however, contended that the agreements in question were never proved nor any marginal witness was examined to prove the same. Similarly, it was submitted that the learned lower Appellate Court rightly came to the conclusion that Ahmad Bakhsh aforenamed was not the owner of the property in question as he had not yet obtained the title in the same which had accrued to him somewhere later on and as such, he could not legally convey the land in question on the basis of the power of attorney which was executed admitted in May, 1973 although the agreements in question were entered in February and March, 1974 respectively. Lastly, it was contended that the learned First Appellate Court rightly held that the power of attorney Exh.P.W.6/14 related to the land which accrued to the original owner namely Ahmad Bakhsh vide Mutation No,2462, dated 29-9-1964 and no other property. It was, therefore, submitted that even if the agreements were proved to have been executed by the aforesaid Ahmad Bakhsh, those would be void as Malik Ziaullah i,e,, attorney had no power to convey the same.
4. I have considered the foregoing arguments very carefully and have gone through the record very minutely. The perusal of the agreements (Exh.P.W.3/3 and Exh.P.W.3/4) would clearly show that the land. Situated in village Niaz Baig measuring 23 Kanals and 2-1/2 Marlas comprising Khasra numbers mentioned therein was conveyed by Ahmad Bakhsh through his general attorney Malik Ziaullah, Advocate for a consideration of Rs,25,000 plus Rs,1,000 through subsequent agreement (Exh.P.W.3/4). The general power of attorney executed in favour of Malik Ziaullah, Advocate by Ahmad Bakhsh was registered on 30-5-1973 in which it was contended that the property owned by the aforesaid Ahmad Baldish vide Mutation No,2462, dated 29-9-1964 shall be administered and sold, etc., by the aforesaid attorney who was also given wide powers such as making mortgage, gift, exchange and entering into mutation, entering into any agreement before Sub-Registrar and also pursuing the matters before all Courts including High Court and Supreme Court and receiving money on behalf of the executant and also entering into compromise in all types of suits and to appoint arbitrator, etc. To come to any decision in respect of property in question. It is clear that the aforenamed attorney was fully competent to dispose of the property and to receive its consideration in any form mentioned therein. The documents placed on record and mentioned in the judgment of the learned Civil Judge clearly indicate that the was pitched in litigation in respect of the land in question. The material litigation in respect of the present dispute was a suit pending in the Court of Ch. Salamat Ali, the then learned Civil Judge, Lahore which was instituted on 18-9- 1973 and decided on 30-1-1974, a copy of which has been placed on record as Exh.P.W.6/7. It shows that there was litigation in respect of the property relating to Khasra numbers mentioned therein out of which some are included in the agreements in question. It is also clearly mentioned in the aforesaid agreements that the dispute was regarding Mutation No,2462, dated 29-9-1964. The aforesaid compromise also clearly shows that the share of Ahmad Bakhsh alias Allah Bakhsh who was Defendant No,1 in that suit came to 23 Kanals and 2-1/2 Marlas which corresponds to the property mentioned in the disputed agreements. It is, therefore, obvious that since Mutation No,2464 was also in dispute in civil litigation and on the basis of the compromise, the deceased Allah Bakhsh had received 23 Kanals and 2-1/2 Marlas out of total property comprising, 46 Kanals, 5 Marlas in the aforesaid suit, therefore, he had become the owner to the extent of that land instead of 46 Kanals and 5 Marlas which included in the aforesaid mutation. It, therefore, follows that at the time of the execution of the agreements in question, i,e,, Exh.P.W.3/3 and Exh.P.W.3/4, dated 12-2- 1974 and 19-3-1974 respectively, the deceased Allah Bakhsh alias Ahmad Bakhsh had already acquired the proprietary rights to the extent of land measuring 23 Kanals and 2-1/2 Marlas on the basis of compromise, dated 30-1-1974 entered into between the parties of the aforesaid civil suit (307/1 of 73). It is, therefore, obvious that the finding of the learned Additional District Judge is based on misreading and misconstruction of the documents on record to hold that the deceased Ahmad Bakish was not the owner of the land in question at the time of execution of the agreements in question. This appears to be hypothetical decision reached by the learned Additional District Judge totally against the record and the documentary evidence produced before the Court. This was not even the case of the respondents/defendants that the deceased Ahmad Bakhsh was not the owner of the land aforementioned at the time of execution Of the aforesaid agreements.
5. Now reverting to the registered general power of attorney, dated 30-5-1973, its recital will show that it was executed when Ahmad Bakhsh had already acquired title in the land in question which of course was in dispute in a Civil Court and was finally settled. At the time of compromise. In fact in the aforesaid civil suit, the ownership of the land in question was challenged by the plaintiffs in that suit by impleading Allah Bakhsh alias Ahmad Bakhsh and one Saleem Khan, his predecessor- in-interest in respect of the land, measuring 46 Kanals, 5 Marlas out of which, the dispute property was also its parcel. The aforesaid land was acquired on the basis of Mutation No,2462, dated 29-9- 1964 and that mutation was also in dispute in that civil suit. It is, thus, obvious that the learned Additional District Judge .Suffered from grave error while holding that the property in question was not the part and parcel of the property mentioned in Mutation No,2462, dated 29-9-1964 and as such, general power of attorney in favour of Malik Ziaullah, Advocate did not authorise him to convey the property mentioned in the agreements in dispute. As pointed out above, the total ownership of Mutation No,2462, dated 29-9-1964 was in dispute in civil suit in which finally the deceased original owner Ahmad Bakhsh had got a chunk of 23 Kanals and 2-1/2 Marlas of land on the basis of compromise which was a part and parcel of the mutation in dispute in that suit. On this misleading assumption contrary to the record, the learned Additional District Judge had given the impugned judgment contrary to the finding of the learned Civil Judge to the effect that the petitioner/plaintiff had entered into a valid agreement with the deceased owner Allah Bakhsh through his attorney Malik Ziaullah, Advocate.
6. The question of limitation was also wrongly spelt out by the learned Additional District Judge as admittedly there was a litigation suspending the right of ownership of the original owner in the writ petition mentioned above which was decided on 1-4-1984 vide order Exh.P.W.6/13 and the suit having been filed on 27-3-1985, the agreements had become executable after the title had become clear of all shadows. The suit was filed oil 27-3-1985 and as such, it was held within time.
7. The nut-shell of the above discussion is that the deceased owner Ahmad Baldish predecessor- in-interest of the present respondents/defendants had entered into the valid agreements with the petitioner/plaintiff through his attorney duly constituted as aforementioned. Even the execution of the registered general power of attorney is not denied by the attorney of the respondents while appearing as only witness in the case who had only said that the executant i,e,, Ahmad Bakhsh had lost confidence in Malik Ziaullah i,e,, his attorney. However, there is no such evidence to lead to such assumption. The agreements in question were even proved through the scribe and marginal witness mentioned above. The learned Trial Court had, therefore, rightly decreed the suit of the petitioner/plaintiff vide its judgment, dated 20-7-1991.
8. The result of the above discussion is that the judgment of the learned First Appellate Court is based on misreading and misconstruction of oral and documentary evidence placed on record and is not sustainable in the eyes of law. The revision petition is accordingly accepted and the judgment and decree, dated 4-7-1994 passed by the learned Additional District Judge, Lahore are set aside whereas, the judgment and decree, dated 20-7-1991 passed by the learned Civil Judge 1st Class, Lahore are upheld. The parties are, however, left to bear their own expenses.