NASIM SIKANDAR, J. - On 30.6.1991 the present respondents filed a suit for declaration and possession alleging that they were owners of land measuring 748 kanals, 10 marlas detailed on the face of plaint and that the defendants had nothing whatsoever to do with the same. Also that the registered sale-deed dated 21.3.1983 from M/s. Sameelu son of Khonti, Phool Khan son of Bodan, Ghosi son of Malu Khan, Hassan Bi and Sumari Bibi daughters of Moj Khan through alleged general attorney-Muhammad Ismail defendant No. 7 in favour of defendants Nos. I to 6 and the subsequent Mutation No. 208, dated 7.3.1987 being a result of fraud needs to he cancelled. Further that the general power-of-attorney from the aforesaid persons in favour of defendant No. 7 registered on 11.8.1969 was a result of fraud and fabrication, against law and facts and, therefore, the plaintiffs were not bound by it.
2. In para 2 of the plaint it was alleged that Ismail defendant No. 7 by playing fraud upon the aforesaid Sameelu etc. Obtained the said general power-of-attorney which in fact was meant and given only for management of the said piece of land. In para 3 it was alleged that Sameelu, Phool and Ghosi respectively died on 6.7.1976, 11.8.1975 and 23.8.1974. The plaintiffs Nos. 1 and 2 were stated to be legal heirs of Sameelu, plaintiff No. 3 of Phool Khan and plaintiffs Nos.4 to 8 of Ghosi. Plaintiff No. 9-Hassan Bi and plaintiff No. 10 Sumari Bibi were plaintiffs in their own person and right. It was further stated that on the death of the aforesaid Sameelu, Phool Khan and Ghosi, general power-of-attorney dated 11.8.1969 given in favour of defendant No. 7 Muhammad Ismail had become ineffective and void. According to the plaintiffs inspite of the death of said three principles the defendant No. 7 went on to register the aforesaid sale-deed in favour of various persons including his sons on 21.3.1983 and on the basis of the said registered sale-deed the transferees got the disputed property mutated in their favour on 7.3.1987. In para 6 of the plaint it was alleged that all these documents namely the general power of-attorney, the registered sale- deed by defendant No. 7 in favour of defendants Nos. 1 to 6 and the mutations were kept secret from the plaintiffs and till Rabi, 1989 the defendants have been paying Hissa Batai or rent to the plaintiffs. According to them it was only in Kharif, 1989 that defendants challenged the ownership of the plaintiffs as also their entitlement to receive rent. Accordingly, in terms of paras Nos. 8 and 9 plaintiffs were put to inquiry. The cause of action according to para 11 of the plaint accrued to the plaintiffs about a week earlier when the defendants finally refused to acknowledge them as owners and therefore to deliver the suit property. Besides the aforesaid registered sale-deed dated 21.3.1983 and the subsequent mutation dated 7.3.1987 a declaration for cancellation was also sought in respect of the general power-of-attorney dated 11.8.1969.
3. The defendants besides taking preliminary objection against maintainability of the suit on limitation had altogether a different story to sell. It was -stated that on 9.8.1969 the aforesaid five personS namely M/s. Sameelu, Phool Khan, Ghosi, Hassan Bi and Sumari disposed of their 720 units as per claim form No. 7251 for a consideration of Rs. 2,360/- and an agreement to sell was executed in favour of the petitioners and therefore they had nothing to do with the land in question. Further that simultaneously the aforesaid five persons executed a general power-ofattorney in his favour vesting all necessary powers in him to dispose of land as and when allotted. It was further submitted that the defendant No. 7 after getting the allotment through "Mukhbari" spent a lot of money on the suit land and made it fit for agriculture. According to the plaintiffs it was only on account of conversion of the land in dispute into a valuable piece of property, that plaintiffs, the original sellers Mst. Hassan Bi, Sumari and the legal heirs of rest of the three sellers were taken by greed to raise a false claim. The paras of the plaint containing allegations of fraud and the deaths of the aforesaid three vendors were denied. Also the assertions with regard to the payment of rent were denied and it was expressly stated that the plaintiffs had never even asked for the payment of rent.
4. On the pleadings of the parties the following issues were framed:-
(1) Whether power-of-attorney No. 170, dated 9.8.1969 executed by Sameelo, Phool Khan and Ghosi predecessors-in-interest of the plaintiffs and in favour of defendant No. 8 (in fact defendant No. 7) was a result of fraud and misrepresentation and as such sale of the suit property made on the basis of said power-of attorney vide sale-deed No. 446, dated 21.3.1983 and mutation No. 208, dated 7.3.1987 is ineffective and inoperative as against the rights of the plaintiffs? OPD.
(2) Whether suit is within time of limitation? OPP.
(3) Whether the plaintiffs have got no cause of action and locus standi? OPD.
(4) Whether defendants are entitled to compensatory costs under Section 35-A, CPC? OPD.
(5) Whether the plaintiffs are estopped to file this suit in view of preliminary objection No. 3 of the written statement? OPD.
(6) Whether defendants have improved the suit property and they are entitled to the costs of improvement? If so to what extent? -OPD.
(7) Whether suit has not been correctly valued for the purpose of Court-fee? OPD.
(8) If issue No. 7 is decided in the affirmative, what is the value of the suit property for the purpose of Court-fee? OP Parties.
(9) Relief.
5. The parties produced oral as well as documentary evidence whereafter the learned Trial Court by way of the judgment and decree dated 26.7.1997 decreed the suit of the plaintiffs.
6. The learned first Appellate Court/Addl. District Judge, Kasur by way of the impugned order dated 20.4.1999 maintained the judgment and decree of the Trial Court. Hence this revision petition.
7. Parties have been heard.
8. Before considering their arguments it appears appropriate to again look at the sequence of - events even at the cost of repetition. According to Ex.D-2 the five principals namely M/s. Sameelu, Phool Khan, Ghosi, Mst. Hasan Bi and Sumari Bibi agreed to sell their claim form 7251 pertaining to 720 units for a consideration of Rs. 2,360/-. Out of that a sum of Rs. 1,370/- was received in advance while another sum of Rs. 890/- were received before the Sub-Registrar on 9.8.1969 when this agreement Ex.D-2 was registered. The remaining Rs. 100/- was agreed to he paid at the time of sale. According, to the conditions of the agreement the sellers agreed to execute the sale-deed in respect of land to be allotted in lieu of their claim. According to Ex.D-2, on the same day they appointed the present petitioner purchaser as general attorney vide Ex.D-5 whereby it was agreed that the attorney shall have their rights in the land to be allotted including its transfer to any person. The general attorney Ex.D-5 was registered with the Sub-Registrar, Kasur on 11.8.1969. The general power of-attorney re-affirmed the sale of 720 units as indicated in claim form No. 7251.
According to the present petitioner No. 7 after execution of the aforesaid documents he got allotted the land in favour of his principals through Mukhbari and took over the possession. The mutation in favour of his five principals with regard to the suit land was entered in the revenue record on 16.11.1980. Further that on 21.3.1983 by way of a registered sale-deed he transferred the suit land in favour of one Noor Muhammad son of Gatari and Muhammad Ishaque etc. His five sons. This sale- deed was given effect to in the revenue record and a mutation was entered on 7.3.1987.
9. From the plaintiffs/now respondents it is alleged that the said three principals namely Ghosi, Phool Khan and Sameelu respectively died on 28.3.1974, 11.8.1975 and 6.2.1976. The factum of death of Ghosi on 23.8.1974 was recorded in the concerned register of deaths on 19.4.1974. The death of the other two principals was however reported to the concerned office on 28.11.1989 as is evident from Ex.P-2 and Ex.P-3. Earlier on 12.11.1989 the living principals namely Hassan Bi and Sumari had executed a Abtal Nama/cancellation deed Ex.D-6. The only reason for cancellation of the aforesaid general attorney registered on 11.8.1969 being that the two living principals "no more trusted their attorney". The copy of the aforesaid mutation Ex.P-6, dated 7.3.1987 also appears to have been obtained by the present plaintiffs on 13.11.1989.
10. As noted earlier the present suit was tiled on 30.6.1991 alleging that defendant No. 7 Muhammad Ismail fraudulently obtained the aforesaid general power-of-attorney from the five principals. In the same para the assertion of fraud was negated and was alleged that defendant No. 7 obtained the said power-of-attorney only for the purpose of managing the land in question. Further that on the death of the aforesaid three principals his authority to deal with the land in question became in effective on the aforesaid dates of their demise. The defendants including Muhammad Ismail took up the defence which has already been discussed in the preceding paras.
11. In support of the aforesaid issues particularly issue No. 1, PW-1 Muhammad Abdul Ghafoor general attorney for the plaintiffs appeared and repeated that the three principals namely Ghosi, Phool Khan and Sameelu had died and that they alongwith the present plaintiffs-Mst. Hassan Bi and Sumari were still owners of the suit land. Also that till 1989 the plaintiffs have been receiving Hissa Batai from the defendant Muhammad Ismail; that in 1989 the refusal on the part of Muhammad Ismail to pay rent put the plaintiffs to inquiry; that it was only then it transpired that he had disposed of the land in question in 1983 in favour of his five sons and one Noor Muhammad. The attorney for the plaintiffs also alleges that the sale transaction effected in 1983 was based upon the aforesaid fraudulent powerof-attorney. Further that at the relevant time, Sameelu, Phool Khan and Ghosi were dead. In cross-examination, he admits that on the death of the aforesaid three persons no mutation of inheritance in favour of their successors or plaintiffs Nos. 1 to 8 was entered in the revenue record. The attorney explains that since the children of the deceased were receiving Hissa Batai therefore, they- did not care for the mutation. The attorney is however not aware of the time when Muhammad Ismail gave Hissa Batai nor the fact when the plaintiffs or their deceased predecessors became the owners of land in dispute. Also he denies that three deceased persons/principals had given power-of-attorney to Muhammad Ismail. The witness is not aware of claim number of the deceased persons. Also he does not know the names of fathers of three deceased principals. After giving a wrong name of the father of other two principals Mst. Hassan Bi and Sumari he admits that the person mentioned by him was not their father. The attorney of the plaintiffs denies that the aforesaid five principals sold their claim on 9.6.1968 for a consideration of Rs. 2,360/- and on the same day they constituted Muhammad Ismail as their general attorney. In his cross-examination the witness also admits that the defendants/present petitioners never paid any rent or Hissa Padawar to the plaintiffs in his presence and that about such payments it was the people who told him. The witness also admits that all the plaintiffs maintain good health and are available for appearance as witness. It is also admitted that in the year 1989 the plaintiffs. Came to know of the sale of land in dispute by Muhammad Ismail defendant in favour of rest of them. The witness is not aware as to the time since when the land in question was not being cultivated. He is also not aware of the name of the canal which irrigated the land in question. PW-2 Hafeez Khan also claims that defendant No. 7 had fraudulently obtained general power-of-attorney. In his cross-examination he admits that he had not seen the land in dispute. Alao admits that he never witnessed sharing of crops or payment of Hissa Batai to the plaintiffs. At the end of his cross-examination, he admits that defendant No. 7 is in possession of the suit land for the last 15/20 years. PW-3 Zahoor Khan repeats the same story and claims that none of the said principals had given power-of-attorney to defendant No. 7 Ismail and that a fraud had take') place. Also that the factum of fraud surfaced only three years earlier to the statement recorded on 20.10.1992. In his cross-examination he ' admits that he does not know the detail of the land in question; that he could not state the precise year in which Ismail gave Hissa Batai to the plaintiffs. Although he remembered the years of death of the aforesaid three principals yet he was not aware of the year of death of his mother, or when the last elections were held etc. In the end of his statement he agrees that the plaintiffs are maintaining good health and are available-for appearance in the Court. From the plaintiffs three certificates of death of the aforesaid persons were produced as Exs.P-1 to P-3, a copy of impugned sale-deed dated 21.3.1983 from Muhammad Ismail defendant as general attorney in favour of rest of the defendants as Ex.P- 4, a copy of general power-ofattorney dated 9.8.1969 as Ex.P-5, a copy of mutation in dispute as Ex.P6, a copy of Jamahandi for the years 1982-83 and that of 1986-87 as Ex.P-7 and Ex.P-8 respectively.
12. The defendants examined three witnesses. DW-4 is the petitioner-writer who claims to have written the general power-of-attorney on 9.8.1969 from the aforesaid principals in favour of Ismail- defendant. According to him he wrote the document at the instruction of the said five persons who affixed their thumb-impressions after having completely understood the same. At the end of the cross-examination, he denies that the said general power-of-attorney was written and executed by him in collusion with Muhammad Ismail-defendant. The other defence witnesses support the claim that after Muhammad Ismail defendant had developed the land. In question the petitioners with a view to usurp the same were raising false claim. The defendant No. 7 Muhammad Ismail as DW-1 states that he had purchased the claim from the aforesaid five persons and through Mukhhari he got the land allotted. Further that whole of the land was barren and that after doing labour for 10/15 years he had made the same parable which became the reason for the raising of false claim by the present defendants. In his cross-examination he is put a suggestion that he had obtained the general power-of-attorney by practising fraud and that the sale-deed based upon the same attorney was also fraud. In his cross examInation he also denies to have ever given the plaintiffs a Hissa Batai. Besides oral evidence the defendants produced Ex.D-1 a certified copy of Iqrarpama, Ex.D-2 a copy of statement of witnesses in another suit between the parties Ex.D-3 a copy of Jamahandi Ex.D-4, a copy of general power of-attorney given by the said five principals Ex.D-5 and a copy of Abtal Nama or cancellation deed by Mst. Hassan Bi and Sumari plaintiffs Nos.
9 and 10 as Ex.D-6.
13, Mr. M.D. Chaudhary, Advocate, for the petitioners assails the orders of the Courts below on the ground of their being a result of misreading and non-reading of evidence. Also submits that general powerof-attorney having been given for a consideration the principals became divested of any interest in the suit property allotted as a result of Mukhbari by their general attorney. Further submits that the learned Trial Court illegally accepted Ex.P-2 and Ex.P-3 the alleged death entries which were admittedly reported to the concerned office after a lapse of about 15 years. From the arrangement of the aforesaid facts he supports the defence that after defendant No. 7 had made the land in question as a valuable property by using his labour and spending money, the plaintiffs/present respondents were wayed by agreed to challenge a transaction which had validly been made by defendant No. 7 as their general attorney. The learned counsel points out that Abtalnama Ex.D-6 by itself is indicative of the fact that original power-of-attorney was not a result of fraud and all the impugned transactions having been made under the authority derived from that power of-attorney could not be assailed after a period of more than 22 years. Further points out that on issue No. 1 there was no evidence worth the name yet the Courts below found the same in favour of the plaintiffs. On the question of limitation again he stresses that no evidence whatsoever was brought on record in support of Para 7 that defendants paid Hissa Batai to the plaintiffs till Kharif, 1989. In support of his submissions that the general attorney having been obtained for a consideration the petitioners could not revoke the same nor the death of any of the principals effected the authority of the general attorney; he relies upon Criminal Law Reports Vol. VI of 1889-90 re: Doward Dickson and Co. And others v. Williams and Co. And English reports 5 CB 895 re: Smart & Sandars and another decided in May, 1848. Also cites re: Sardar Bir Singh v. Noor Ahmed and others (AIR 1972 Gauhati 122 (V 59 C 38) to contend that the death of one of the principals would he effective only to the extent of his interest and that it remains operative on behalf of the living principals. Also refers to the ratio settled in re: Abdul Ghaffar v. Ziaur Rahim and others (1991 SCMR.451). In that case the Supreme Court granted leave to appeal to examine if the failure on the part of the predecessor-in-interest of respondents in challenging in his life time the PTO and PTD' issued in petitioner's favour could lead to an inference if he had accepted the transfer. Also places reliance upon re: Khanzada lnamullah Khan v. Mst. Zakia Qutan, etc. (PLD 1998 Pesh. 52) to contend that where the attorney/agent had completed and performed due acts without any objection by the principal the cancellation of power-of-attorney thereafter would be of no effect. On the same proposition also mentions NLR 1985 SO 105 re: Akhtar Hussain and others v. Settlement Commissioner and others wherein it was found that where the possession was acted upon through an association deed duly approved by the Deputy Settlement Commissioner it was too late for the donor of power-of-attorney to challenge the transfer made on the basis of the attorney.
14. Mr. A.K. Dogar, Advocate, for respondents on his turn supports the findings of the Courts below for the reasons stated therein. Also opposes an interference in the concurrent findings of fact as recorded by the Courts below. In support of his submissions on the subject he places reliance upon re: Abdul Hafeez v. Ghulam Muhammad (1987 SCMR 1005), re: Muhammad Rafique v. Divisional Engineer PW Railway (1992 CLC 786) and re: Abdul Hakeem v. Habib Ullah, etc. (1997 SCMR 1139).
Further contends that the impugned transfer made by the alleged attorney-defendant No. 7 in favour of his sons was otherwise had in law. To support the contention reliance is placed upon re: Hull Mitha Khan v. Nafees Begum (1995 CLC 896), re: Haji Faqir Muhammad v. Pir Muhammad (1997 SCMR 1811) and re: Muhammad Siddique v. Mst. Shagufta Begum (1994 CLC 1690). In the last cited two judgments the Supreme Court as well as a Single Bench of this Court in the facts and circumstances before them disapproved transfer of property by attorney in favour of his sons or in the manner where the agent himself ultimately became the beneficiary. A mention of definition of word "Kharif" as made in re: Zaildar v. Allah Banda (1981 SCMR 1027) is also made. This authority appears to have relied upon to support paras 6 and 7 of the plaint; that on denial of the defendant No. 7 to give Hissa Batai the plaintiffs immediately started probing the reason of his denial.
15. After considering the rival arguments I entertain no doubt that this is not only a case of misreading and non-reading of evidence but of a finding recorded and conclusions drawn against admitted facts. A glance at the order of the Trial Court makes it clear that most vital issue No. 1 was decided in favour of the plaintiffs and against the defendant on the ground that general power-of- attorney was mainly given for persuing the plaintiffs claim form No. 7251 for 720 units and that the document was not given to allow the attorney to transfer the same; that three of the principals having died earlier to sale-deed registered in the year 1983 it could not he sustained; that the plaintiffs having denied the agreement to sell Ex.D-2 the same could not he looked into and that the power-of-attorney of 1969 in favour of defendant No. 7 lapsed in the year 1980, on completion of proceedings on their claim form No. 7251. On issue No. 2 it was observed that PW-1 Abdul Ghafoor special attorney of the plaintiffs was not cross-examined on his claim that defendants had been sharing produce with the plaintiffs and therefore the same should he considered to have gone unrebutted. It was again found that PW-3 was also not cross-examined on this subject and therefore "non-crossing of that fact amounts to admission".
16. All these reasons which resulted in finding favourable to the petitioners on issues Nos. 1 and 2 are open to exception both legal and factual plain. To say that the general attorney did not allow defendant No. 7 to transfer the land or that it was given only for the restricted purpose of perusing the claim proceedings of the plaintiffs is totally against record. The general power-of-attorney not only expressly allowed the attorney to dispose of the land but also permitted him to get it allotted at any place of his choice. The learned Trial Court instead of appreciating the approbation and reprobation made in para 2 of the plaint rather allowed a premium to the plaintiffs for pleadings fraud and at the same time alleging that the power-of-attorney was obtained to manage the property in dispute. It overlooked the simple fact that on the date of execution of general power-of attorney and agreement to sell no land was in existence and therefore the question of its management hardly arose at all. No notice was taken of the vital fact that the plaintiffs were guilty of concealment of the basic document namely the registered agreement to sell which was the only and sole reason for giving of general power-of-attorney. Learned Trial Court rather went a step ahead to reconcile the contradictory pleadings of the plaintiffs. The learned Trial Court also fell in error by accepting and relying upon Ex.P-2 and Ex.P-3 the.; death entries of Phool Khan and Sameelu principals. No explanation whatsoever came forth from the plaintiffs as to why the aforesaid the dates of death of the two principals were reported on 28.11.1989 after more than 15' years of the reported dates. The learned Trial Court also failed to consider the sequence of events that the said Abtalnama executed on 12.11.1989 expressly admitted the general power-of-attorney as a valid document and that the aforesaid deaths were reported only days after on 28.11.1989. The Abtalnama having admitted the general power-of-attorney as a valid document a heavy burden laid by the plaintiffs to prove the alleged fraud. The learned Trial Court was equally wrong in not appreciating the fact that the evidence introduced by the plaintiffs controverted the contents of Para 2 of the plaint as noted earlier. PW-1 Abdul Ghafoor general attorney of the plaintiffs claimed that the general power-of-attorney was fictitious. Even in the cross-examination he denies that the principals and their predecessor either gave a power-of attorney to defendant No. 7. On the other hand in para 2 of the plaint the execution of power-of-attorney was expressly admittedly though it was stated to be for a different purpose which in fact was not existent at the relevant time. Also no reason whatsoever was stated to constitute a poor, illiterate villager as general attorney.
17. The learned Trial Court also did not consider the fact that on gaining knowledge in the year 1989 the plaintiffs slumbered for a period of two years and no explanation whatsoever was given. As to why they took two years time to assert their valuable rights. The observation of the Trial Court in para 15 that all defence witnesses are interested is all the more impertinent. In suits of the kind before it the parties and the people around the disputed properties are most relevant witnesses.
The Trial Court also seriously fell in error by refusing to consider Ex.D-2 the registered Iqrarnama by which the plaintiffs Nos. 9 and 10 and the predecessor-ininterest of the other plaintiffs had agreed to sell the land to he allotted in lieu of their claim form No. 7251. The document having properly been placed on record and having been registered simultaneously with the general power-of- attorney could not he brushed aside on the ground that it was denied by the plaintiffs. This finding is also factually wrong as the plaintiffs never even mentioned the same in the plaintiff. Their concealment was condoned as denial and given full credit to the detriment of the defendants. The failure on the part of the Trial Court to look into Ex.D-2 and to give complete effect to it has resulted in conclusion which are completely against law and facts on record. The observation of the Trial Court in para 2 that PW-1 attorney Abdul Ghafoor and PW-3 Zahoor Khan were not cross-examined on the issue of Hissa Batai is also against the record . As noted above PW-1 was properly cross- examined on the issue who rather denied to have ever witnessed the sharing of crop as rent between the parties. Likewise DW-3 was also cross-examined .On the issue and in the first instance he stated that defendant No. 7 Ismail used to give 15/20 maunds of wheat to the plaintiffs. However, he failed to identify the year in which the claimed share was given to the plaintiffs. The drawing of the aforesaid inference on the basis of lack of cross-examination on the point therefore was clearly against record. The fact of the matter is that none of the three PWs ever claimed to have witnessed the sharing of Hissa Batai by the defendants with the plaintiffs or their predecessor. Even their attorney PW-1 did not make any such claim. Therefore the finding that the plaintiffs had succeeded in proving sharing of the crop was without an iota of evidence.
18. Going back to the findings recorded on issue No. 1 it is observed that the learned Trial Court held the admitted document to be a result of fraud on the ground that the defence had failed to rebut the allegations made by the plaintiffs. In re: A.I Mohataram Naqvi, v. Messrs Gogefar Astaldi Sidmail (PLD 1986 Karachi 574) the established principle of law was repeated that where the onus of prove was on the plaintiff his failure to produce cogent evidence would not cast any responsibility on the defendants to negatively disprove the same. It is one of settled law that where fraud is alleged, the burden lies upon the party alleging it. The plaintiffs alleged the fraud though at the same time admitted the execution of the documents. Their attorney deposed against the contents of the Para 2 of the plaint. In spite of that, the learned Trial Court proceeded to decide the issue in their favour.
19. One of the other reasons which weighed with the Trial Court to decide issue No. 1 in favour of the plaintiffs being that units were not transferable property and therefore, could not he alienated or agreed to he sold by way of Ex.D-2. This proposition was again seen in isolation and without reading together both general power-of-attorney as well as the agreement to sell. In re: A.I Muhammad v. Muhammad Sharif (NLR 1990 Civil 555) in exactly an identical situation this Court found that the agreement to sell with regard to units coupled with a general power-of attorney executed in the favour of the purchaser manifested that it was not a case of sale of PI units but the vendor agreed and undertook to sell land whenever the same was allotted against his units. It will also he noted that the learned Trial Court failed to consider the factum of payment of sale price except for Rs. 100/-. The defendant No. 7 already having paid almost the whole of the price and having been constituted a general attorney clothed with unfettered powers to use the units and then the land allotted in lieu thereof, nothing remained vested with the principals to deal with. In re: Mal Development Authority Vs. Khushi Muhammad and another (PLD 1994 Lahore 108) it was noted that evidence on record showed that purchase price for acquiring ownership rights had already been paid, though conveyance deed was not yet executed. It was accordingly found that proprietary rights vested in the purchaser of the grant upon deposit/payment of purchase price.
20. The learned Trial Court also failed to note that the plaintiffs at least two of them being the original party to the documents in dispute kept themselves away from the witness-box. An adverse inference in the circumstances ought to have been drawn against them. All the more so when both the plaintiffs Nos. 9 and 10 cancelled the general power-of attorney after almost twenty years and that too for the sole reason that they did not trust the attorney any more. An adverse inference was also necessary to be drawn inasmuch as the attorney representing the plaintiffs admittedly knew nothing about the principals, name of their fathers, when the land in dispute was allotted nor Hisa Batai was ever shared in his presence. He was not a witness to any of the documents in question nor he was otherwise related to the property or the parties which could make him a person relevant to he cross-examined. He does not even know since when the land in dispute was not being cultivated. From his cross-examination, the contention of the defence appears established that he had purchased the litigation and that the plaintiffs were not interested in suing the defendants.
21. Be that as it may, the failure of the plaintiffs particularly of plaintiffs Nos. 9 and 10 to enter the witness-box and to explain the facts clearly non-suited them as both of them were the only living persons who could support the facts given in the plaint or could explain the reasons for the execution of documents and their silence for a period of 20 long years. In re: Mst. Khair-ul-Nisa and 6 others Vs. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), their Lordships of the Supreme Court quoted with favour a part of the finding recorded by Peshawar High Court in re: Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1959 Peshawar 81). Their Lordships found that principle enunciated in that decision was correct. Earlier the Peshawar High Court had observed as under:- "It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf and to submit to cross-examination. His non-appearance as a witness would he the strongest possible circumstance going to discredit the truth of his case."
22. The learned Trial Court failed to follow this principle and believed a person who had nothing to do with any of the transactions in question while those involved therein were admittedly hale and hearty and were available for cross-examination. Both plaintiffs opted to remain away from the witness-box without any plausible explanation. If they had done so, they could have been confronted with the contents as well as their fixing of thumb impression on both the agreement to sell and the general power of-attorney. Ignoring this fact also resulted in a serious prejudice to the rights of the defendants. Both issues Nos. 1 and 2 in the aforesaid facts were wrongly decided in favour of the plaintiffs as there was no evidence worth the name to discharge the burden placed upon them.
23. The learned Trial Court/Addl. District Judge, Kasur by way of the impugned order dated 12.4.1999 in fact contributed nothing at all. The narration of facts necessarily picked up from the judgment of the Trial Court were suffixed by a para of few lines to say that the Trial Court had rightly scanned and discussed the evidence. Nothing was said as to how these findings could stand in view of the grounds of appeal taken before it.
24. Coming to the submissions- made by the respondents I find that the case-law relied upon in this regard is clearly distinguishable. To say that the concurrent finding of fact can in no circumstances he disturbed by the High Court will make the provisions of Section 115 of CPC redundant as far this Court is concerned. The principle settled in the cases relied upon cannot be pressed into service to close the doors on litigants approaching this Court in revisional jurisdiction.
The latest view of the Supreme Court can he seen in re: Abdul Hakeem v. Habibullah (supra). In that case it was inter alia found that the findings of fact will he open to interfere under Section 115 of CPC where the approach of Courts below to evidence was perverse. Nothing could he a better instance of the finding of the kind as was made by the Trial Court in this case. It is, as a matter of fact, not only a case of misreading or non-reading of evidence but as observed earlier a case of finding recorded against the admitted facts as well as the record. The exercise of revisional jurisdiction in cases of concurrent finding of fact is of course restricted where the Courts below neither committed any misreading of evidence nor omitted from consideration any material piece of evidence. Also if their appreciation of evidence was not perverse. In a most recent judgment reported as re: Sirtqj Khan v. Jan Muhammad (1999 PSC 78) the Supreme Court showed indulgence for a party who had not been successful even in revision before the High Court. In that case the Trial Court dismissed the suit. The dismissal was maintained by the first Appellate Court as well as the revisional Court. Their Lordships proceeded to accept the appeal and direct that the suit should be decreed after holding that all the three Courts did not read evidence on record in its correct perspective and had also misread the evidence. Since the three qualifications contemplated in the judgment relied upon by the respondents re: Abdul Hakeem v. Habib Ullah (supra) are fully answered in this case the objection against the exercise of revisional jurisdiction is rejected.
25. In the next case relied upon at the bar for the defence re: Haji Mitha Khan v. Mst. Nafees Begum and 2 others (1995 CLC 896) a single Bench of the Peshawar High Court stated the rules of construction of a power-of-attorney in the light of Section 188 of the Contact Act (IX of 1872). It was done in the perspective of the fact that the power-of-attorney in question was executed and registered on 27.6.1969 while the property in question was acquired by the principal through a registered sale-deed on 19.3.1975. The general principles discussed in that regard are not relevant.
26. The other two cases re: Haji Faqir Muhammad and others (1997 SCMR 1811) and re: Muhammad Siddique and 2 others v. Mst. Shagufta Begum (1994 CLC 1690) are also distinguishable. In none of the two cases general power-of-attorney was coupled with an agreement to sell or it was executed for consideration in the form of receipt of almost the whole of the price settled. Therefore, the disapproval of the transfer of property in favour of sons of the attorney does not attract to defendant No. 7. It will also be seen that the registered sale-deed executed by the defendant No. 7 in 'favour of his five sons and defendant No. I Noor Muhammad was clearly shown for consideration. In the first instance at the relevant time namely 21.3.1983 when the sale took place both the defendants Nos. 9 and 10 were alive. The death of other two principals namely Phool Khan and Ghosi on the basis of the aforesaid documents cannot he accepted. It was Ghosi one of the five principals who could he said to have died at the time of execution of sale-deed dated 21.3.1983.
At best the said sale could have been held to he ineffective only against the legal heirs of Ghosi only. Ghosi Khan did not challenge the general power-of-attorney during his life time. If he had done so, his claim, like the rest of the donors could be seen only in the perspective of the consideration he had received. The claim by his successors who were not even recorded in the revenue record as such could at best he made within a period of three years. They alongwith the rest of the plaintiffs having failed to do so and as found earlier the suit of the plaintiffs being beyond limitation they lost their right to assail the impugned sale.
27. Lastly it may be noted that grant of a declaration under Section 42 and of injunction under Section 54 of Specific Relief Act, 1877 is necessarily discretionary. This discretion cannot he exercised in favour of a party which approbates and reprobates, conceals necessary facts from the Court and keeps itself away from the witness-box. The two of the plaintiffs in this case and the predecessor-in-interest of the others received consideration for their units and constituted defendant No. 7 as their attorney to deal with the land to he allotted against these units in whatever manner he wished. The gentleman got the same done and on the basis of the authority allowed to him he transferred part of the land to his sons and a portion of the same to a stranger. To deprive such a person of his life time Investment and labour on the basis of far- fetched technicalities cannot be in the interest of justice. The activation of the plaintiffs in the year 1989 and then their in-action for another two years does not find a plausible explanation. They became active, through their attorney in the year 1989 and reported the factum of death of the two principals after almost 15 years. The Abtalnama was got registered by the living donors within next days giving a ridiculous "reason. The copies of mutation recorded were obtained. The plaintiffs living in the same village cannot be accepted to have been unaware of the two transactions sought to be cancelled. They are not moved even when no mutation of inheritance is entered in their favour. From the alleged dates of deaths of predecessor-in-interest of plaintiffs Nos. 1 to 8 in the years 1974 and 1976 till filing of suit in 1991 nothing was done to express an intention to assert their ownership of the suit land. In 1989 their attorney PW-1 though does not belong to the village rushes to report the said deaths and then again becomes inactive for next two years. They concealed the factum of agreement to sell and of receipt of consideration through and through.
On the other hand the defence is devoid of any turbidity and brings on record the facts as they happened even if mechnically they were not strictly favourable to them. The plaintiffs, in my considered opinion, did not approach the Court with clean hands. In a similar situation in re: Haji Noor Muhammad v. Ghulam Masih Gill (PLD 1965 (W.P.) Baghdadul Jadid 1) this Court refused to interfere or to allow discretionary relief by way of an injunction or declaration. In that case a mutation was entered and the statement of the parties were recorded by the Revenue Officer. However, somehow the papers disappeared and then second mutation was entered with the permission of the Deputy Commissioner. The appellant asserted that possession of the land was given to him in 1957 after he had paid the sale price which remained with him until the attestation of second mutation in May, 1959. However, subsequently the plaintiff forcibly dispossessed him and then tiled a criminal case under Section 447, PPC. The plaintiff alleged that he was owner in possession of the suit land and that the mutation of sale sanctioned by the Revenue Officer in respect of that land for a consideration of Rs.
10,000/- was inoperative for the reason that he never sold the land nor received any consideration.
The Trial Court held that the aforesaid consideration was paid in cash and that the possession was also delivered which remained with the defendants for sometime. The plaintiffs-respondents failed before the District Judge and on regular second appeal, as aforesaid this Court refused to show indulgence to him. It was held that the plaintiffs-respondents having received a sum of Rs. 10,000/- as sale price of land but making a false statement in the plaint and that falsehood sought to be proved at the trial was not entitled to discretionary relief by the Court.
The facts in hand are identical to those as considered in that case as regards the conduct of the respondents. They were not entitled to discretionary relief under the said provisions of the Specific Relief Act. Accordingly this revision petition is accepted. The judgment of the first Appellate Court as well as that of the Trial Court are set aside with the result that the suit of the plaintiffs shall he dismissed with costs.