' This judgment will dispose of Civil Revision No,I49-D of 1983/BWP and Civil Revision No,150-D of 1983/BWP as both of them arise from the same judgment.
2. The facts of the case are that Sultan son of Umar/respondent tiled a Suit for declaration bearing No 58 of 1973 against Abdul Khaliq petitioner to the effect that he is the owner of the land measuring 48 Kanals described in the detail in the heading of the plaint and that the general power of attorney alleged to be executed by him in favour of one Habib Ullah is fictitious, collusive and ineffective upon the rights of the plaintiff and that mutation of Oral Sale No,712 dated 7-4-1973 attested on the basis of the said general power of attorney is also illegal. As a consequential relief, decree for permanent injunction was also prayed.
3. The suit was resisted by the petitioner/defendant who contended that the suit was not competent in its present form; that the valuation of the suit-land for the purposes of court-fee had not been correctly fixed; that the plaintiff had challenged the general power of attorney dated 29- 10-1968 hence the suit was time-barred; that the general attorney of the plaintiff acting within his right, had sold the suit land to defendant No,1 against consideration of Rs,9,000 and the necessary mutation of the Sale No,712 was also got attested by the said general attorney in favour of the petitioner/defendant.
4. Abdul Khaliq petitioner filed a separate suit for declaration that he was the owner of the land in question having purchased the same from Sultan through his general attorney for a consideration of Rs,9,000 with consequential relief for permanent injunction that the defendant in his suit be restrained from interfering in his possession. The said Suit bears No,57 of 1973. Both the suits were consolidated vide order, dated 19-1-1974 and the following issues were framed:-- ' Issues:
(1) Whether the power of attorney from the plaintiff in favour of the defendant No,2 is forged and fictitious and as such inoperative against the rights of the plaintiff? OPP.
(2) Whether the mutation of said of the Suit Land No,712, dated 22-3-1973 is illegal, ineffective against the rights of the plaintiff for being fictitious, forged, without consideration and authority?
OPP.
(3) Whether the impugned sale is hit by the provisions of section 54 of Transfer of Property Act and section 17 of the Registration Act? OPP.
(4)Whether the suit is not maintainable in its present form? OPD.
(5)Whether the plaint is deficiently stamped for court-fee? OPD.
(6)Whether the plaintiff has come to this Court with clean hands? If so with what effect? OPD.
(7) Whether the suit is time-barred? OPD.
(8) Whether the plaintiff is estopped to institute this suit by his words and conduct? OPD.
(9) Whether the impugned sale is protected by the provisions of section 53-A of Transfer of Property Act? OPD.
(10) Whether the defendant is entitled to recover special costs? OPD.
(11) Relief.
5. The learned trial Court on the basis of the evidence produced before it found Issue No,1 against the plaintiff/respondent and held that the plaintiff/respondent had failed to discharge the onus of proof on this issue and that the general power of attorney executed in favour of defendant No,2 Habib Ullah was a genuine document. As a corollary of its findings on Issue No, I the learned trial Court on Issue No,2 preceded to hold that mutation of sale No, 712 dated 22-3-1973 in favour of the petitioners, based upon the general power of attorney was lawful. Under Issue No,3 it was held that section 54 of the Transfer of Property Act and section 17 of Registration Act did not invalidate the sale. The findings on Issue No,4 was that the suit of the respondent without seeking possession was maintainable. Issue No,5 regarding valuation of the suit for purposes of court-tee and . Jurisdiction was decided in favour of petitioner while Issue No,6 was decided by the learned trial Court in view of its findings on Issue No,1. Upon Issue No,7, the suit was held to be time-barred. Findings, on Issue No,8, followed the findings upon Issue No, 1 . Issue No,9 regarding protection of section 53-A of the Transfer of Property Act was decided against the petitioner and so was the findings on Issue No,10.
6. The learned trial Court on the basis of the aforesaid findings dismissed the Suit No,58 of 1973 filed by Sultan while Suit No,57 of 1973 filed by Abdul Khaliq was decreed on 10-6-1980. Against 'he said judgment and decree the respondent/plaintiff tiled two. Civil Appeals bearing Nos.19 and 20 of 1982.
Vide judgment and decree dated 4-4-1983, the learned Additional District Judge, Bahawalnagar accepted both the appeals with the result that Suit No,58 of 1973 of the respondent was decreed while Suit No,57 of 1973 filed by the petitioner was dismissed.
7. In this Civil Revision, the following grounds were taken:--
(i) that the learned Additional District Judge has misread the evidence of P.W.3, P.W.4 and P.W.5.
These witnesses were not examined on Oath and, therefore, the petitioner could not cross-examine any of these witnesses. Whatever was deposed by these witnesses was of no help to the respondent;
(ii) that the learned Additional District Judge, has mostly relied on the evidence of the expert but the sample paper which contained the thumb-impression of the respondent does not contain a certificate that ;nese thumb-impressions were obtained in presence of the Court. Also it did not have any. Clarification as to who identified the respondent is the Court before his thumb-impression was taken. Therefore, this cannot be said with certainty these thumb- impressions on the sample paper were undisputed thumb- impressions of the respondent;
(iii) that the documents, produced by respondent (Register Petition Writer, Register Stamp vender and Register Al-abdaat) were tampered with because there is clear cut observation of the Court that these registers seem to be tampered with and for these reasons these registers were retained by the Court on the day when the evidence of P.W.3, P.W.4 and P.W.5 were being recorded. Under the attending circumstances when the documents were tampered with the export should have discussed all the points of controversy in detail but the same has not been done by the expert and cannot be relied upon; and
(iv) that the learned Additional District Judge, has also misread the evidence of D.W.3 marginal.
Witness of general power of attorney and D.W.2 the registrations Clerk at the time of execution of General Attorney and has failed to note their deposition that they personally know the respondent and that he had thumb-marked the original power of attorney at the time of registration their presence. Therefore, the deposition of these two witnesses sufficiently proved the execution of original general power of attorney of the respondent.
8. On the other hand, the learned counsel for the respondent forcefully contended that the Appellate Court had minutely examined the evidence produced by the respondent, both documentary and oral in juxtaposition with the evidence produced by the petitioner and arrived at the conclusion that the general power of attorney from the respondent in favour' of Habib Ullah was a fictitious document; that the subsequent mutation favouring the petitioner on the basis of the said power of attorney was thus void; that oral sale, even otherwise was ineffective upon the rights of the respondent, in view of section 54 of Transfer of Property Act, 1882; that the samples of thumb-impression was obtained by the trial Court itself and that the objection regarding the absence of certificate that their thumb-impressions were obtained by the trial -Court was frivolous and inconsequential and that P.W.3, P.W.4 and P.W.5 had only appeared to produce documents and were not required to be cross-examined.
9. The arguments of the learned counsel for the parties have been heard and record perused with their assistance.
10. The plaintiff/respondent has produced six witnesses in support of his contention besides recording his own statement. Wali Muhammad P.W.1 stated that the plaintiff Sultan had not executed any power of attorney in favour of any person nor did he sell the suit-land to the petitioner/defendant. He also stated that the suit property was in the cultivating possession of one Abdul Shakoor as a tenant who used to pay the share of Batai to the plaintiff/respondent.
Muhammad Siddique P.W.2 also corroborated the statement of P.W.1 stating that the land in question was cultivated by Shakoor as a tenant under Sultan and the petitioner/defendant never obtained possession of the land in question. According to him, the petitioner/defendant had got transferred the suit-land in his favour through fraud. It may be mentioned here that Habib Ullah the alleged general attorney was arrayed as defendant No,2. However, he was proceeded against ex pane. The original power of attorney was not produced on the record. As the original power of attorney was not available, the plaintiff was allowed to adduce secondary evidence for that purpose. P.W.3 Allah Din, petition writer produced the petition Writer's Register pertaining to the year 1968. The thumb-impression of Sultan, however, was found to be tampered with, P.W.4 produced the Stamp Vendor Register, although the Stamp paper was sold in favour of the plaintiff/respondent but again the thumb-impression was found tampered with. P.W.5 is Muhammad Sabir Registration Clerk of the office of Registrar, Bahawal Nagar. He produced register of Alabdaat. P.W.6 was Ch. Muhammad Yaqoob, DSP Finger Print Bureau, Lahore who deposed that the thumb-impression on the petitioner Writer's register, on the Stamp Vendor's register and in the register of the Sub-Registrar's Office were different from the right and left thumb-impression of the respondent Sultan from the sample of thumb-impressions sent by the Court for comparison. The report of the Finger Print Expert is Exh.P.1. The enlarged photographs are Exh.P.2. The thumb- impression of the plaintiffs, respondent sent for comparison are Exh.P.3.
1 1. On the other hand, the petitioner produced Syed Ghulam Farid, Moharrir Mall Tehsil Bahawalnagar as D.W.1, Fayyaz Khan, Registration Clerk as D.W.2 who sta:ed that the respondent/plaintiff had produced the general power of attorney for registration before the Registrar. This witness also deposed that the plaintiff was identified by Elahi Bakhsh and Sheikh Annu Jan, Member Union Committee "C", Bahawalnagar. He stated that the original power of attorney was handed over to Habib Ullah. Muhammad Din had appeared as D.W.3 and deposed that he was the marginal witness of the general power of attorney. D.W.4 Muhammad Khan is the Lumberdar who had identified the parties at the time of attestation of mutation of sale on behalf of Habib Ullah, general attorney of the plaintiff in favour of the petitioner. D.W.5 is a witness to the said mutation of sale while the petitioner himself appeared is P.W.6 and supported the written statement.
12. The contention of the learned counsel for the petitioner that the evfdence of P.W.3, P.W.4 and P.W.5 was nor recorded on Oath, therefore, their statements have no evidentiary value is .Without force. A perusal of the record shows that P.W.3 Allah Din petition Writer produced his register, Aziz Ikram from Excise and Taxation Officer produced a register of the Stamp Vendor as P.W.4. While Muhammad Sabir Registration Clerk of the Office of Registration Tehsil Bahawalnagar appeared as P.W.5 and produced register of Alabdaat. It is, thus, clear that the said three witnesses only produced documents before the trial Court and under Article 134 of the Qanun-e- Shahadat Order, 1984, a person summoned to produce document does not become a witness by the mere fact that he products it and can not be cross-examined. The said three witnesses did not make any statement on oath and were thus, not required not be cross-examined. The second contention of the learned counsel for the petitioner that paper upon which the sample thumb-impression of the respondents were obtained by the trial Court was not accompanied by a certificate that these thumb-impressions were obtained in the presence of the Court is also devoid of merit. The paper upon which the samples thumb-impression of respondents were obtained was duly signed by the Trial Judge. The contention that the sample should also have been accompanied by a certificate of Trial Judge is hyper technical and would not advance the case of the petitioner.
13. P.W.1 Wali Muhammad and Muhammad Saddiq P.W.2 made statements on oath that the respondents has not sold his land to the petitioner nor has he executed any power of attorney in favour of any person. It was also in evidence that the suit property was cultivated by Shakoor as a tenant who used to pay the share of the Batai to the respondent Sultan. This is also corroborated by the report of Mr. Lmtiaz Ahmed Samar, Advocate, who was appointed as local Commissioner by the trial Court. According to his report dated 15-2-1979 the suit property was cultivated by Abdul Shakoor as a tenant under respondent Sultan. The Local Commissioner also recorded the statement of the said Abdul Shakoor. Nothing has been brought out against the veracity of these witnesses in cross-examination. As stated the remaining P.W.3, P.W.4 and P.W.5 appeared in the Court and produced their respective register Chaudhry Muhammad Yaqoob, DSP Finger Print Bureau, Lahore appeared as P.W.6 and specifically stated that the thumb-impression as Mark "E" in the stamp Vendor's register the thumb-impression Mark "F" in the petition Writer's registere and thumb-impression Mark "G" in the register of Sub-Registrar's Officer were different from the right and left thumb-impressions to Sultan respondent of his sample thumb-impressions which were sent by the Court for comparison of to him. The report of P.W.6 is exhibited as Exh.P.1 and the enlarged photographs of the thumb-impressions are Marked as Exh.P.2. The thumb-impression of respondent Sultan sent for comparison is Exh.P.3. The petitioner in defence produced Ghulam Farid who deposed that respondent Sultan had produced the General Power of Attorney for registration before the Registrar on 19 10-1968; that the petitioner produced D. W I , D.W.2 and D.W.3 to prove the execution of the General Power of Attorney. The statements of these witnesses including their cross-examination has been perused. Whereas, the trial Court placed reliance upon the statements of D.W.1, D.W.2 and D.W.3 in coming to the conclusion that the General Power Attorney was proved by them, it is apparent that the learned trial Court did not elaborate the evidentiary value of these witnesses. The treatment of the evidence by the learned Appellate Court is found to be a correct appreciation of the statements made by these witnesses particularly in cross- examination. For cogent and justifiable reasons, as recorded in the judgment of the Appellate Court, their evidence was not believed as compared with the evidence produced by the respondents. The First Appellate Court also-noticed the non-production of material witnesses such as Illahi Bakhsh and Ammu Jan, Member Union Committee "C" Bahawalnagar. These were the persons who had statedly identified the respondents for execution of the General Power of Attorney. To the contrary it is on the record that the statement of this Amrnu Jan was recorded through local Commissioner according to which he had stated that he did not remember whether he had identified any person at the time of Registration of the General Power of Attorney. Another import aspect of the case is that Habib Ullah the alleged attorney, of the respondent who was arrayed as a defendant did not appear in the Court. The original General Power of Attorney was also not produced in the Court. It is thus held that the judgment of the Appellate Court holding that the respondents did not execute any General Power of Attorney and that the sale Mutation No,712 dated 22-3-1973 made on the basis of the said General Power of Attorney was illegal and void is a correct appreciation of evidence on the record.
14. One aspect of the case which- has escaped the notice of the First Appellate Court and which was wrongly decided by The learned trial Court was the effect of section 54 of the Transfer of Property Act, 1882 upon the impugned mutation of sale. It is by now a settled principle of law that section 54 of the Transfer of Property Act applies to the area comprising of the former State of Bahawalpur and was applicable with full force on 22-3-1973 when the mutation of sale No,712 was sanctioned. As the sale was not effected through a registered instrument, it is ineffective on the right of the respondent Sultan. Reliance in this respect is placed upon the following judgment:-
(i) Jangi v Jhanda and others PLD 1961 B.J.
34.
(ii) Haji Noor Muhammad v. Ghulam Masih Gill PLD 1965 (W.P.) B.J.
1.
(iii) Muhammad Bakhsh v. Zia Ullah and others PLD 1971 B.J.
42.
(iv) Muhammad Baldish v. Zia Ullah and others 1983 SCM R 988.
(v) Muhammad Khan and another v Fazal Muhammad and another 1994 SCM R 281.
(vi) Pir Bakhsh v. Budhoo NLR 1978 Civil 249.
(vii) Muhammad Fazal v. Kaura 1999 SCM R 1870.
16. In view of the fore-going none of the contentions raised by the learned counsel for the petitioner is sustainable. The First Appellate Court had exercised its jurisdiction legally, fairly and in a just and proper manner. No interference is warranted. The revision petition is dismissed. Parties to bear their own costs.