' On 30-6-1991 the present respondents filed a suit for declaration and possession alleging that they were owners of land measuring 748 Kanals and 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 Messrs 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.1 to 6 and the subsequent mutation No,208, dated 7-3-1987 being a result of fraud needs to be 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 in spite of the death of said three principals 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 mutation 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 Messrs 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 of attorney 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 plaintiffs have got no cause of action and locus standi ? OPD.
(4) Whether defendants are entitled to compensatory costs under section 35-A, C.P.C.? 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/Additional 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 Exh.D.2 the five principals namely Messrs 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 Exh.D.2 was registered. The remaining Rs,100 was agreed to be 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 Exh.D.2, on the same day they appointed the present petitioner purchaser as general attorney vide Exh.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 power of attorney Exh.D.5 was registered with the Sub-Registrar, Kasur on 11-8- 1969. The general power of attorney reaffirmed 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, Pool 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 Exh.P.2 and Exh.P.3. Earlier on 12-11-1989 the living principals namely Hassan Bi and Sumari had executed a Abtalnama cancellation deed Exh.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 Exh.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 field 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, P.W. 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 power of attorney. Further that at the relevant time, Sameelu, Phool Khan and Ghosi was 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 Paidawar to the plaintiffs in his presence and that about- such payments it was 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. P.W.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. Aslo admits that he never witnessed harvesting 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.
P.W.3 Zahoor Khan repeats the same story and claims that none of the said principals had given power of the attorney to defendant No,7 Ismail and that a fraud had taken 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 are 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 Exhs.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 Exh.P.4, a copy of general power of attorney, dated 9-8-1969 as Exh.P.5, a copy of mutation in dispute as Exh.P.6, a copy of Jamabandi for the years 1982-83 and that of 1986-87 as Exh.P.7 and Exh.P.8 respectively
12. The defendants examined three witnesses. D.W.4 is the petition writer who claims to have written the general power of attonrey from the aforesaid principal in favour Ismail-defendant. According to rum 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 D.W.1 states that he had purchased the claim from the aforesaid five persons and through Mukhbari 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 arable 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 has 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 Exh.D.1 a certified copy of Iqrarnama, Exh.D.2 a copy of statement of witnesses in another suit between the parties Exh.D.3 a copy of Jamabandi Exh.D.4, a copy of general power of attorney given by the said five principals Exh.D.5 and a copy of Abtalnama or cancellation deed by Mst. Hassan Bi and Sumari plaintiffs Nos.9 and 10 as Exh.D.6.
13. Mr. M.D. Chaudhry, 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 power of 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 Exh.P.2 and Exh.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 defendant 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 greed to challenge a transaction which had validly been made by defendant No,7 as their general attorney. The learned counsel points out that Abtalnama Exh.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 T-Iisa Batai to the plaintiffs till Kharif, 1980. In support of his submissions that the power of attorney having been obtained for a consideration the petitioners could not revoxe the death of any of the principals affected the authority of the general attorney; he relies upon Criminal Law Reports Vol. VI of 1889- 90 re: Doward Dickson & Co. And others v. Williams & Co. And English Reports 5 CB 895 re: Smart and Sandars and anothers decided in May, 1848. Also cites re: Sardar Bir Singh v. Noor Ahmad and others AIR 1972 Gauhati 122 (V 59 C 38) to contend that the death of one of the principles would be 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. Zaiur 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 lifetime the P.T.O. And P.T.D. Issued in petitioner's favour could lead to an inference if he had accepted the transfer. Also places reliance upon re: Khanzada Inamullah 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 1985 SCMR 521 re: Akhtar Hussain and others v. Settlement Commissioner and others wherein it was found that where the power of attorney 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 submission on the subject he places reliance upon re: Abdul Hafeez v. Ghulam Muhammad 1987 SCMR 1005, re: Muhammad Rafique v. Divisional Engineer P.W. Railways 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 bad in law. To support the contentions reliance is placed Haji 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 argument 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 perusing 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 be sustained; that the plaintiffs having denied the agreement to sell Exh.D.2 the same could not be 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 P.W.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 be considered to have gone unrebutted. It was again found that P.W.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 plane. 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 felt in error by accepting and relying upon Exh.P.2 and Exh.P.3 the death entries of Phool Khan and Sameelu principals. No explanation whatsoever came forth from the plaintiffs as to-why the aforesaid dates of death of the two principals were reported on 2841-1989 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 28-114989. The Abtalnama having admitted the general power of attorney as avalid 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..P.W.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 admitted though it was stated to he 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 others v.
Settlement Commissioner and others wherein it was found that where the power of attorney was acted upon through an association deed duly' approved by the Deputy Settlement Commissioner it was 'too tate for the donor of power of attorney to challenge the transfer made on the basis of the attorney. '
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: Ali Mohataram. Naqvi v. Messrs Gogefar Astaldi Sidmail PLD 1986 Kar. 574 the established principle of law was repeated that where the, onus of prove was on the plaintiff, his failure to produce cogent evidenee 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 plaid. In spite of that the learned trial Court proceeded to decide the issue in their fa'cour.
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 be alienated or agreed to be sold by way of Exh.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: Ali Muhammad v. Muhammad Shard 1990 ALD 398(2), 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 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 be 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 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: Thal Development Authority v. Khushi Muhammad and another PLD 1994 Lah. 108 it was noted that evidence on record showed that purchase price for acquiring ownership rights had already been paid, though convayance deed was not yet executed. It was accordingly found that proprietory 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 Hissa 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 be 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 interest 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 even 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 v. 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 Pesh.
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 circumstance of the case to give evidence on his behalf and to submit to cross-examination. His non- appearance as a witness would be 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/Additional 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 be disturbed by the High Court will make the provisions of section 115 of C.P.C. 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 be seen in re: Abdul Hakeem v. Habibullah (supra). In that case it was inter alia found that the findings of fact will be open to interfere under section 115 of C.P.C. Where the approach of Courts below to evidence was perverse. Nothing could be 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: Sirtaj Khan v.
Jan Muhammad PLD 1998 SC 1502 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 Contract 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,1 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 be accepted. It was Ghosi one of the five principals who could be 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 be ineffective only against the legal heirs of Ghosi only. Ghosi Khan did not challenge the general power of attorney during his lifetime. If he had done so, his claim, like the rest of 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 be 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 421 and of injunction under section 54 of Specific Relief Act, 1877 is necessarily discretionary. This discretion cannot be 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 be 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 lifetime investment and labour on the basis of farfetched 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 become 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 rediculous 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-ininterest 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 P.W.1 though does not belong to the village, rushes to report the said deaths and then again becomes inactive for next two years. 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 some time. 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 respondent. 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 is set aside with the result that the suit of the plaintiffs shall be dismissed with costs.