CH. IJAZ AHMAD, J.--- The brief facts out of which the present revision petition arises are that Allah Ditta predecessor-in interest of the petitioner filed a suit for declaration with a prayer for permanent injunction as consequential relief. The contents of the plaint reveal that the disputed land measuring 26 kanals, 19 merles was owned by Allah Ditta predecessor-in-interest of the petitioner. He was an old man of 70 years age having no issue and wife. He entrusted the look after the disputed land to his maternal nephew Ata Muhammad respondent No. 2. Late Allah Ditta executed special power-of-attorney in his favour on request of respondent No. 2 for looking after the disputed land, getting the redemption of the same and to demand the rent form the tenants but respondent No. 2 fraudulently got entered the power of sale, mortgage and alienation of the disputed land in the special power of-attorney on 4.7.1978. Ata Muhammad respondent No. 2 sold the disputed land in favour of respondent No. 1, his minor son vide registered sale-deed dated 17.6.1979 without any consideration and transferred possession. During the pendency of the aforesaid suit Allah Ditta died and his real brother Khushi Muhammad present petitioner filed amended plaint on 11.10.1982. The respondents filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties the Trial Court framed the following issues:-
(1) Whether the alleged sale of Ata Muhammad in favour of defendant No. 1 is without consideration and the consent and knowledge of the plaintiff? OPP.
(2) Whether the plaintiff has no locus standi to bring this suit? OPD.
(2-A) Whether this suit is not maintainable in its present form? OPD.
(2-B) Whether suit is incorrectly valued for the purposes of Court-fee, if so, what is the correct valuation? OPD.
(3) Relief.
The learned Trial Court decreed the suit vide judgment and decree dated 19.6.1986. It is pertinent to mention here that respondents Nos. 3 to 8 also filed a suit for pre-emption against Safdar A.I which was also dismissed. Respondents Nos. 1 and 2 being aggrieved by the judgment and decree of the Trial Court filed an appeal before the District Judge who entrusted the same to the learned Addl.
District Judge, Sialkot. Respondents Nos. 3 to 8 also filed appeal before the-District Judge which was also entrusted to the learned Addl. District Judge. The learned Addl. District Judge accepted both the appeals vide consolidated judgment and decree dated 26.11.1986, hence the present revision petition.
2. The learned counsel of the petitioner contended that judgments of both the Courts below are at variance. He further urged that first 'Appellate Court reversed the judgment and decree of the Trial Court without adverting to the reasoning of the Trial Court. He further stated that allegedly general power-of-attorney was executed by late Allah Ditta predecessor-in-interest of the petitioner in favour -of Safdar A.I his own minor son without consideration. Mere fact that sale-deed was executed in favour of his own son after eleven days creates doubt that the sale-deed was executed by him by fraud and misrepresentation. He further urged that Allah Ditta predecessor-in- interest of the petitioner has filed suit against the respondents Nos: 1 and 2 in his life-time. His statement has also recorded. He further- stated that Allah Ditta died in the house of the petitioner.
He further stated that respondents failed to prove on record that general power-of attorney was executed by late Allah Ditta in favour of Ata Muhammad respondent. The respondents failed to produce both the attesting witnesses of the power-of-attorney. The respondents produced only Ghulam Rasool, Lumbardar who admitted that he did not know the contents of the power-of- attorney. He did not know who ' has written the general power-of-attorney. The respondents failed to produce subscriber in the witness-box 'whereas petitioner produced affidavit of Liaqat A.I other attesting witness of general power-of-attorney who stated in his affidavit that late Allah Ditta only authorised Ata Muhammad to receive the rent and redemption of his land and did not authorise him ,to sell the land. Late Allah Ditta also cancelled the general power-of attorney in favour of Ata Muhammad on 24.6.1979. The petitioner produced independent witnesses who corroborated the contents of the -plaint but the learned first Appellate Court did not advert to these aspects of the case and reversed the finding. The respondents failed to bring on record original copy of power-of attorney which is sufficient to come to a conclusion that the general power-of-attorney is fictitious.
3. The learned counsel of respondents Nos. 1 and 2 contended that the general power-of-attorney was executed in favour of respondent No. 2 and 4.6.1978 and the suit was filed by late Allah Ditta after nine months on 18.3.1979. The Trial Court wrongly relied upon affidavit of Liaqat A.I attesting witness as the respondents did not get any opportunity to cross-examine him. Ghulam Rasool Lambardar also stated in his statement that power of-attorney was executed by late Allah Ditta in favour of Ata Muhammad respondent, the original was mis-placed. The certified copy was produced before the Trial Court. The learned first Appellate Court reversed the finding with cogent reasons as the Trial Court mis-read the record and decreed the suit in violation of the law laid down by the superior Courts. The first Appellate Court has taken into consideration contradictions of the witnesses of the petitioner/plaintiff. This Court has no jurisdiction to disturb the finding of fact arrived at by the learned first Appellate Court while exercising power under Section 115, CPC as the learned counsel of the petitioner failed to point out any piece of evidence which was mis-read by the first Appellate Court or to show any material irregularity committed by the first Appellate Court.
4. The learned counsel for respondents Nos. 3 to 8 adopted the arguments of the learned counsel of respondents Nos. 1 and ,.2 and stated that the first Appellate court has given finding of fact against the petitioner after proper appreciation of evidence.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that predecessor-in-interest of petitioner appointed respondent Ata Muhammad, his maternal nephew as attorney on 4.6.1978 who sold the land in question to his minor son for consideration of Rs.60,000/- on 17.6.1978. In view of the above even if the power-of-attorney was valid the sale cannot be upheld as the same has not been proved to have taken place with consent of Allah Ditta deceased. Even otherwise it is very strange that the deceased who was aged' about 70 years and allowed his maternal nephew to dispose of whole of his property. He executed power-of-attorney in favour of Ata Muhammad respondent in lieu of services rendered by him to look after late Allah Dita deceased. It is admitted fact that Allah .Ditta died in the house of his real brother Khushi Muhammad petitioner. Judicial notice can also be taken of the value prevailing in our village society according to which if there is an old man having no male or female issue relations make every effort to grab his property. This is what appears to have happened in this case. Ata Muhammad respondent who is real maternal- nephew of the deceased appears to have been upon to deprive of the expected heirs of the deceased who is real brother of the deceased from inheriting the property in question, transaction in question, therefore, is proved to be sham transaction hence void and even without consideration because at the time of registration of sale-deed in favour of Safdar A.I is a student of 5th class. Hence no evidence- has been brought on record by the respondent Safdar A.I that the amount of consideration was ever paid to Allah Ditta deceased. I am fortified by the judgment of Peshawar High Court in Sardar Ahmad Khan's case (PLD 1950 Peshawar 45) and the judgment of Hon'ble Supreme Court in PLD 1990 SC 1. Allah Ditta deceased has filed suit for declaration against respondents Nos. 1 and 2 that he has given power-of-attorney in favour of Ata Muhammad only to recover the rent from the tenants and redeem the property in question whereas the respondents have taken the stand that Allah Ditta deceased had given power-of-attorney to sell the land in - question which creates doubt and ambiguity qua the execution of power-of-attorney. It is settled proposition of law that power-of attorney has to, be construed strictly and in cases of doubt and ambiguity it should be construed for the benefit of Executant. I am fortified by the judgment of. Hon'ble Supreme Court in Malik Nazir Ahmad's case (MLD 1992 S.C.J. 587). It is also admitted fact that original power-Of-attorney was not produced by the respondents in evidence as such will give rise to a presumption that the same if produced in evidence would have gone against the version of the respondents. I am fortified by the following judgments:-
(1) 1996 MLD 1123 (Abdul Hameed's case).
(2) N.L.R. 1995 Civil Law Judgments 188 (Mrs. Parveen's case).
(3) NLR 1995 Civil Law Judgments 227.
At any rate the sale in question as mentioned above being illegal and assumed sham transaction cannot be upheld and being void and nullity in the eyes of law.
6. In view of what has been discussed above the revision petition is accepted and the judgment of the first Appellate Court is set aside and the judgment of the Trial Court is upheld. There shall be no order as to costs.