This regular second appeal is directed against the judgment and decree, dated 21-9-1981, passed by Ch. Muhammad Aslam, Additional District Judge, Sahiwal, vide which he allowed respondents' appeal, set aside the judgment and decree of the learned trial Judge dated 25-5-1980, and dismissed appellant's suit.
2. Facts giving rise to the instant appeal are that appellant/plaintiff filed suit for declaration and permanent injunction to the effect that she was owner of the agricultural land subject-matter of this appeal, that the said land was initially owned by appellant's father Noor Muhammad (deceased), that the latter owned land measuring 224 Kanals in District Bahawalnagar which he had gifted to the respondents-defendants (being sons of Noor Muhammad deceased and real brothers, of the appellant-plaintiff), that appellant's father gifted the remaining land to the extent of 11/27 shares to the appellant and the remaining 16/27 shards to the respondents-defendants, mutation was attested on 1I-5-1973, possession was transferred and parties became full owners in afore-referred terms. It was further averred in the plaint that by exercising undue influence over Noor Muhammad, father of the parties who was residing with the respondents-defendants, they got filed an appeal against the mutation dated 11-5-1973 and procured order, dated 13-2-1974, passed by the Collector vide which appellant's-plaintiff's share was reduced. Her precise. Case was that neither Noor Muhammad (deceased) could file the appeal nor he could revoke the gift made in favour of the appellant which had already been completed. The suit was contested. The case of the defendants was that Noor Muhammad (deceased) by means of the gift in question had transferred 11/54 share in the name of the appellant and 43/54 share in the name of the respondents-defendants but while attesting the mutation the shares had been wrongly entered as 11/27 and 16/27 respectively. When this came to his notice Noor Muhammad filed appeal before the Collector and during the pendency of the appeal a compromise was effected between the parties, in terms of which, appellant-plaintiff agreed that the share be corrected in terms as contended by the defendants (11/54 and 43/54). Muhammad Din, husband of plaintiff and her general attorney appeared before the Collector on her behalf to give effect to the afore-referred compromise.
3.In terms of the conflicting pleas following issues were framed:-- (1)Whether the plaintiff is estopped by words and conduct from filing this suit? OPD (2)Whether the plaintiff is in possession of the land in suit? If not whether the suit is competent in its present form? OPD (3)Whether the plaintiff was given 11/27 share in the land in suit in gift by Noor Muhammad? OPP (4)Whether parties entered a compromise whereby plaintiff was declared owner to the extent of 11/54 share only in the land in suit? OPD (5)Whether the court-fee paid is deficient? OPD (6)Whether the plaintiff has got no cause of action to file this suit? OPD .
(7)Relief.
4. The learned trial Court decreed the suit on the ground that the husband of plaintiff did not have specific authority in the general power of attorney to enter into compromise with the defendants and that the gift made by Noor Muhammad (deceased) having been completed and possession delivered the same could not have been revoked. The learned First Appellate Court, however, while affirming the finding of the learned trial Court on Issue No.2 set aside the judgment and decree on the basis of its finding on Issues Nos. 1, 3 and 4 and dismissed the suit. It was held that her case in the plaint was that the order of the Collector, in terms of which, a compromise was given effect to between the parties was collusive whereas during trial her stand was that Muhammad Din, her husband and general attorney was not competent to effect the compromise, that the plaintiff failed to adduce any evidence to rebut the evidence on record that a 'Panchayat' was convened by Noor Muhammad (deceased) wherein respondent agreed to terms of the compromise whereafter appeal before Collector was disposed of that the plaintiff did not appear in Court in support of the plaint, that her own witness P.W.5 Akbar A.I (her special attorney as well) conceded that her general attorney before the Collector i.e. Her husband was never informed about the cancellation of the general power of attorney attested in his favour, that in terms of the said general power of attorney Muhammad Din had authority to enter into compromise, that Noor Muhammad (deceased) never revoked the gift. The latter's stand before the Revenue Authorities was that the share of the parties i.e. (his daughters and sons) had not been correctly entered in the Revenue Record and that the gift was not complete as no evidence was led to show that appellant-plaintiff was in possession of 11/27 shares of the suit land or that the donor had asked the tenants to attorn to the plaintiffs to the extent of the afore-referred shares.
5.Learned counsel for the appellant made following submissions in support of this appeal:-- (i)That Noor Muhammad (deceased) had appeared before the Revenue Officer on 29-4-1973 and made a statement which is Exh.P.I, in terms of which, the mutation was attested and possession delivered to the plaintiff and her brother i.e. The respondents-defendants.
(ii)That the appeal before the Collector in which the allege) compromise was effected was not competent and any order passed therein has no sanctity in law.
(iii)That the general power of attorney made in favour of plaintiff's husband, namely, Muhammad Din stood revoked before he made statement while appearing in appeal before the Collector and, therefore, he could not act on the basis of the said general power of attorney; and (iv)That the general power of attorney even otherwise had no specific authority to enter into compromise. In support of the submissions made learned counsel relied on 1997 SCM R 1267 and PLD 1980 Azad J&K 60.
6.Vide order, dated 10-5-2001 a learned Judge of this Court had proceeded ex parte against the respondents as it was observed:-- "The respondents, namely, Akbar A.I and Asghar A.I son of Noor Muhammad could not be served by ordinary means, therefore, citation has appeared in Daily Nawa-i-Waqt Multan dated 3rd of April, 2001 for today. Despite repeated calls, nobody has turned up, therefore, they are proceeded ex pane---
7. Notwithstanding the ex parte proceedings against the respondents the appellant has to prove her own case. The main stress of appellant's learned counsel has been that although appellant's husband Muhammad Din though was a general attorney but his power of attorney had been revoked prior to 13-2-1974 when compromise was effected before the Collector and that even otherwise the general power of attorney did not authorise him to effect compromise. Admittedly when compromise was effected before the Collector (13-2-1974) father of the parties Noor Muhammad was alive. It was only after his death that the suit was filed after a delay of almost three years. In the plaint it was never her case that Muhammad Din had no authority to effect compromise or that she was unaware of the afore-referred order of the Collector vide which the compromise was allowed. It was only during trial, for the first time, that one Akbar A.I P.W.5 appeared as her special attorney to state that the power of attorney made in favour of her husband had been revoked. However, in cross-examination he admitted that the plaintiff had not informed Muhammad Din, her husband about the cancellation of the general power of attorney and further conceded that at the time when Deputy Commissioner passed the order Muhammad Din was her general attorney and further that the plaintiff and her husband Muhammad Din were living together happily. In these circumstances it cannot be said that the appellant had not authorised the general attorney to effect compromise. Her subsequent conduct further proves that she not only extended consent but accepted the compromise as she did not challenge the order of the Deputy Commissioner, dated 13-2-1974, before the next forum in revenue hierarchy. The precedent case-law, to which, refer been made by appellant's learned counsel is distinguishable inasmuch "1997 SCM R 1267" at the time of the execution of the power of attorney property was not even owned by the principal and, therefore, it was observed at page 1273 :-- ---------..Attorney had nothing to do or to deal with the property in suit or to file any suit or appeal in respect of the property which was not the subject-matter of the power of attorney.--- Similarly the case reported in 1981 CLC 1248 is of no avail to the appellant as the case pertained to a temporary injunction matter and there was no final ajudication between the parties.
8. The non-appearance of appellant-plaintiff herself during trial would also raise a presumption against her as she was the best person to depose about the convening of 'Punchayat' in which compromise was effected and it is in evidence that she appeared in the said compromise which compromise was finally given effect-to before the Deputy Commissioner
9. In Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1959 (W.P.) Peshawar 81), a Division Bench of the said Court commented on non-appearance of party and held at page 100 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 be the strongest possible circumstance going to discredit the truth of his case."
10. The afore-referred view was further reiterated in "Saleh Muhammad Khan v. Hassan Muhammad Khan" (1981 CLC 353 (SC) (AJ&K)). The non---appearance of defendant was commented upon and it was observed at page 357 as under:-- "Adverse inference for his omission to examine himself as a witness and manifest the nature of his possession, will go against him. His was the best evidence about the nature of his possession on the suit. Sardar Gurbakhsh Singh v. Gurdial Singh and another (AIR 1927PC 230) may be quoted with approval. It is observed in that case:-- 'The true object to be achieved by a Court of Justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicion attaching to it. The story can then be subjected in all its particulars to cross- examination'."
11. The appellant is in second appeal. The learned First Appellate Court has considered all the entire evidence and has given a finding of fact. Learned counsel has failed to show any piece of legal evidence which, if considered, could have persuaded the learned First Appellate Court to come to a different conclusion.
12. For what has been discussed above, I do not find any merit in this appeal which is dismissed.