' This revision petition under section 115, C.P.C. Filed by Syed Mazhar Haider etc., petitioners, to call in question the judgment and decree dated 16-6-1999 passed by the appellate Court/Additional District Judge, Gujranwala, whereby, the judgment and decree dated 19-7-1999 passed by the Civil Judge, Gujranwala, dismissing the suit of the predecessor-ininterest of the respondents/plaintiffs was set aside.
2. Briefly slated the facts of the case are that Ali Ahmad, predecessor-in-interest, of the present respondents instituted a suit for declaration with consequential relief of possession in respect of agricultural land measuring 35 kanals 2 Marlas situated in Khasra Nos.1031 to 1934, 1141, Khewat No,228 Khatoni No,493/494, Mauza Bhakhreyali Khalal, Tehsil and District Gujranwala, challenging the execution of general power of attorney dated 23-1-1988 and mutation of sale No,1656 dated 20-6-1988 by petitioner No,1 in favour of petitioner No,2 being so-called attorney of Ali Ahmad, predecessor-in-called attorney of Ali Ahmad predecessor-in-interest of the respondents. He alleged in the plaint that the impugned power of attorney and mutation was result of fraud, misrepresentation, collusiveness without lawful authority, illegal and ineffective on the right of the respondents/plaintiffs. The suit was contested by the petitioners/defendants, filed their written statements, raising some preliminary objections like non-maintainability of suit, insufficiency of Court fee, cause of action, estoppel etc. On the pleadings of the parties, trial Court framed various issues and after recording and appraising the evidence of the parties pro and contra, dismissed the suit with the reasoning that the plaintiffs/respondents had failed to establish his case according to the averments of the plaint. Feeling aggrieved, Ali Ahmad, perdecessor-in-interest of respondents Nos.1 to 5 preferred an appeal and the appellant Court/Additional District judge, Gujranwala disagreeing with the findings of the trial Court, set aside the judgment and decree of the trial Court, accepted the appeal, decreed the suit and came to the conclusion that the defendants/petitioners could not prove the execution of power of attorney beyond and shadow of doubt vide judgment and decree, dated 16-6-1999.
3. Learned counsel for the petitioners contended that the appellate Court had failed to take into consideration that the particulars of fraud were not proved by said Ali Ahmad and he had admitted the obtaining of loan from the Agriculture Development Bank Pakistan by mortgaging his land and defaulted in the payment of instalments of loan. To clear this loan he asked petitioner No,2 to advance loan for the payment of his instalment to the Agricultural Development Bank of Pakistan. The petitioner No,2 showed his willingness to pay instalment of loan with the condition that in case plaintiffs fail to pay back the debt, then land would be sold to the petitioners. For that purpose the agreement to sell was to be executed and the amount of instalment paid by petitioner No,2 would be considered as earnest money. He further contended that power of attorney (Exh.D.1) a registered document and authenticity, presumption of truth was attached to the registered document; but the appellate Court failed to exercise jurisdiction and acted illegally in the exercise of jurisdiction vested in it by ignoring the document. He further argued that the appellate Court illegally assumed the role of finger print expert and could not give its findings in respect of the thumb marks affixed by the plaintiffs on the document, power of attorney. He further submitted that the appellate Court misread the evidence and omitted to consider the same which was very important and material and had direct bearing upon the merits of the case.
4. I have heard the learned counsel for the petitioner and also gone through the record. The case of the petitioners defendants is that Ali Ahmad, predecessor-in-interest of the plaintiffs/repondents was defaulter of ADBP and to clear that loan he obtained money from petitioner/defendant No,
1. It was settled that if the respondents/plaintiffs failed to return money received from petitioner No,1, he will sell his land to him and this amount received by him would be considered as earnest money. If at all, it is true then the agreement should have been executed between petitioner No,1 and the Ali Ahmad but here on record the agreement to sell was executed between petitioner No,2 and Ali Ahmad. At the time of getting money from petitioner No,1, this petitioner No,2 was not in picture. It was not the condition that the land in dispute will be transferred or sold to petitioner No,2. Syed Mazhar Haider petitioner No,1 appeared as D.W.6 in the Court and got his statement recorded. In his examination-in-chief, he had not stated to the effect that there was any settlement between him and the plaintiffs that the amount obtained by the plaintiffs from him would be considered as earnest money of the agreement to sell and no such agreement was executed between the parties. The only agreement executed which produced in evidence was Exh.D.2 made between petitioner No,2 and Ali Ahmad, predecessor-in-interest of Respondents/plaintiffs Nos.1 to 5' and from scanning of the said document such condition or settlement is not reflected. From the evidence to this extent it is established that Ali Ahmad deceased had received loan of Rs,14,000 plus Rs,9000 total Rs,23,000 and no other evidence was available to prove the receipt of Rs,1,27,000 as advance by the plaintiff. The power of attorney Exh.D.1 was signed by Ch. Faryad Hussain Advocate who appeared as D.W.1. He admitted in his cross-examination that Exhs.D.1. And D.2 were written by his clerk and no consideration was passed in his presence. He had also admitted that the parties had not signed or thumb marked in his presence. The scribe of document Muhammad Zafar Ullah, clerk of Faryad Hussain Advocate PW appeared as -D.W.4. He admitted that he was not a petition-writer and had no licence of petition writing. He also admitted that no consideration was passed in his presence. The power of attorney was registered on 19-1-1998 but neither the Sub- Registrar who registered the document was produced to prove the endorsement by him on the document nor Muhammad Jamil who had identified the executant Ali Ahmad deceased was produced in evidence of the execution of power of attorney and the receipt of Rs,1,27,000 and further amount Rs,48,000. When a document, the execution of which is denied and doubtful then the burden to prove shifts on the persons who get benefit out of the document and the beneficiary of the power of attorney were petitioners Nos.1 and 2. It is pertinent to mention here that petitioner No,2 is relative of petitioner No,1, and petitioner No,1 as D.W.6 admitted in cross-examination that petitioner No,2 is his real uncle and father-in-law. The Honourable Supreme Court in case Sam Ullah v. Muhammad Manzoor PLJ 1986 SC 526 (sic) observed that in case the person who is alleged to have executed the document denied his signatures, his signatures can be proved by calling the person in whose presence the document was executed. "The signature of the plaintiff on Exhs.D.1 and D.2 could be proved only by calling two attesting witnesses of these documents. The petitioners produced D.W.1 Faryad Hussain Advocate who stated that the executant did not thumb mark in his presence, out of his evidence, the petitioners could not take any benefit. The D.W.4 claims to be the scribe of the document Ex. D.1 and D,2 but had not signed the same. Therefore, it cannot be believed that the document was written by him. The writer who writes the document is not an attested witness in the eyes of law and only Syed Gulzar Hussain Shah D.W.5, one of the marginal witnesses appeared and other marginal witness Basharat Ali Shah was not produced in evidence. The D.W.5 was the marginal witness of Exh.D.2 only and the document Exh.D.2 was not proved by the- petitioners in accordance with Articles 17 and 79 of Qanoon-e-Shahadat Order, 1984, therefore, it was not a valid legal document. The marginal witnesses of power of attorney, namely, Haji Muhammad Shafi and Basharat Ali Shah had not been produced therefore, execution of powers, of attorney Exh.D.1 was not proved firstly by non-producing marginal witnesses secondly, by non-producing Muhammad Jamil, Identifier and the Sub-Registrar, so the authenticity could not be attached to such documents. The Mutation No,1656 dated 20-6-1988 was got entered by the attorney/Petitioner No,1 in favour of petitioner No,2 on the basis of Exh.D.1, the power of attorney, which was not a valid document and the attorney had exceeded the authority because he had transferred the property in dispute in favour of his father-in-law/real uncle and in such case where the property of his principal is alienated by a general power of attorney in favour of those who are so closely related to the agent that ultimate beneficiary would be the agent himself of the property of the principal failing which the principal would be at liberty to repudiate the transaction and this principle was settled in case of Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 811. The dictum laid down in the case of Haji Faqir Muhammad (supra) is applicable on all four corners of the present case as Ali Ahmad was alive at that time and he was kept in darkness. In his absence the mutation of sale in dispute was got attested by the attorney himself.
What was the reason why the principal, owner of the property, deceased Ali Ahmad was not produced before the Revenue Officer at the time of attestation of the mutation of sale?
Furthermore, the power of attorney was a general type and specifically no power to transfer the property in dispute was given by executant to the attorney in his power of attorney. It has been held in Basri v. Abdul Hameed 1996 M LD 1123, that in a transaction of sale on the basis of the alleged power of attorney, the person who had been validly authorized to alienate to another, had to satisfy the Court that the time of entering into the transaction of sale of property, principal was not available and in absence of such evidence, transaction would not hold good unless it was established on the record that the same had made with the knowledge and consent of the petitioner. In the present case, no evidence was brought on the record to establish that at the time of sale Ali Ahmad, predecesor-in-intereest of the plaintiffs was not available or could not be contacted. Therefore, the sale in question on the basis of invalid power of attorney was without lawful authority and mutation of sale quite was illegal and void. The appellate Court had discussed all the evidence and gave findings against the petitioner. Learned counsel for the petitioner failed to point out any material irregularity, jurisdictional defect and misreading or non-reading of evidence. The contentions raised by the learned counsel for the petitioner are misconceived and repelled. There is no illegality in the impugned judgment and decree, dated 16-6.1999 passed by the appellate Court, hence unexceptionable.
5. For the foregoing reason, I see no force in this revision petition which is dismissed in limine.