The petitioner on 14-2-1979' filed a suit against the respondents. One Muhammad Yasin was also impleaded therein as defendant No.3.. In the plaint it was stated that the suit property was owned by Chiragh Din, the father of the petitioner as also of respondents Nos.1 and 2 and the said Yasin; that respondent No. l proceeded to transfer the entire property to respondents Nos.3 and 4 vide registered sale-deed, dated 14-2-1978; that Yasin is not heard of since more than 10 years before institution of the suit and shall be deemed to be dead. Respondent No.5 procured a power of attorney allegedly executed by the said Yasin on 15-9-1982 at Karachi and proceeded to execute the sale-deeds on 2-11-1982 in favour of his son, respondent No.6 and nephew respondent No.8.
These latter documents were challenged on the ground that Yasin was dead and had not appointed respondent No.5 as an attorney and as such the sales made by him in favour of respondents Nos.6 and 7 are void. Respondent No. 1 admitted the case of the petitioner.
Respondents Nos.4 and 5 took the plea that only Amin and Yasin were the heirs of Chiragh Din and since Yasin had not been heard of for the statutory period Amin being the sole heir was competent to sell the entire property to them. Respondents Nos.5 to 7 took the plea in their written statement that Yasin was well and alive living at Karachi who appointed respondent No.5 as an attorney on 15-9-1982 who proceeded to transfer the land to respondents Nos.6 and 7 in equal shares out of 1/3rd share of Yasin in the property of his father. Following issues were framed:----
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the suit is undervalued for the purposes of court-fee? OPD 6 to 8.
(3) Whether the plaintiff is estopped by her conduct to ring this suit? OPD.
(4) Whether the suit is collusive with defendants Nos. l and 2? OPD 4 and 5.
(5) Whether the plaintiff has no locus standi to bring is suit? OPD 4 to 8.
(6) Whether the general power of attorney in favour' of defendant No.6 is illegal, fictitious and hence in effective upon the rights of the plaintiff? OPP.
(7) Whether the sale-dead, dated 2-11-1982 on the bis of general power of attorney, dated 15-9- 1982 in favour of defendants Nos.7 and 8 are illegal and fictitious, hence ineffective upon the rights of the plaintiff? OPP.
(8) Whether the defendant No. l was owner to the extent of 1/3rd share in the suit property and he exceeded his right in the property and sold it to the defendants Nos.4 and 5 through sale-deeds, dated 4-2-1978 and 14-2-1978 the said sale-deed to the extent of shares of the defendants of Chiragh Din is illegal, void and ineffective upon the rights of the plaintiff? OPP.
Evidence of the parties was recorded. The learned trial Court decreed the suit of the petitioner vide judgment and decree, dated 14-6-1987. So far as the alienation by the respondent No. l is concerned, it was held that it would not have effect beyond the 1/3rd share of respondent No.1.
Regarding the alienation made by respondent No.5 it was declared that the power of attorney has not been proved and as such the subsequent transactions are void. .
2. Against the said judgment and decree only respondents Nos.5 to 7 filed a first appeal. In this appeal Yasin was not impleaded. The appeal was heard by a learned Additional District Judge, Gujranwala who allowed the appeal and proceeded to hold that the petitioner had no locus standi to file the suit and thus, proceeded to set aside the judgment and decree of the learned trial Court This was done vide judgment and decree, dated 20-9-1989.
3. Learned counsel contends that there was no evidence on record of the execution of a valid power of attorney by Yasin and neither is there any evidence on record that he was heard of within the statutory period by those who would have normally heard of him. According to the learned counsel the learned Additional District Judge has misread the evidence and has further proceeded to misconstrue the law on the subject. Learned counsel for the E respondents Nos.5 to 7 supports the impugned judgment and decree of the learned Additional District Judge by arguing that the certified copy of the power of attorney had been produced without any objection from the other side and that power of attorney itself was proof of the fact that Yasin was alive.
4. I have examined the records, appended with this Civil Revision. I find that neither the original power of attorney was produced nor any marginal witness of the same was produced to prove the same. In fact there is no evidence on record except the statement of respondent No.5 the alleged attorney in proof of valid execution of power of attorney by Yasin. Learned counsel for the respondents has sought to explain away the said glaring fact by arguing that the certified copy of the power of attorney i.e. Exh.D.1 was not objected to when it was placed on record. The said argument of the learned counsel fails to take note of the succinct difference between an objection regarding an objection as to the mode of proof and an objection as to the admissibility. So far as the first objection is concerned, the learned counsel is right that an objection as to mode of proof has to be taken at the time the document is sought to be produced. However, it is not so in the case of the latter for the reason that a document which is inadmissible in evidence even if exhibited without any objection cannot be legally read into evidence. Reference be made to the case of Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2.Others (PLD 1973 SC 160). Certified copies of only such documents are admissible in evidence as are public documents as defined in Article .85 of the Qanun-e-Shahadat Order, 1984. Under clause (5) of Article 85 only such registered documents are public documents, execution. Whereof is not disputed. In the present case what to speak of a dispute as to execution, the case set up was that the executant is dead in law. The document, therefore, was not a public document and certified copy was not per se admissible in evidence There is thus, no evidence on record of execution of the power of attorney by Yasin, in favour of respondent No.5.
5. The learned Additional District Judge proceeded to decide Issue No.5 rather in a vacuum without adverting to the circumstances of the case and the letter of law which was to be applied by him, The fact is not denied that the petitioner is -a sister of Yasin and similarly no one has denied that respondent No. l is not the brother of Yasin. These are the persons who would have normally heard of Yasin and they stated on oath that they have not heard of him for a period exceeding the one prescribed in Article 124 of the Qanun-e-Shahadat Order, 1984. I may reproduce here the said Article:-- "
124. Burden of proving that person is alive who has not been heard of for seven years.--When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. "
Once it has been stated by the brother and the sister that Yasin had not been heard of, it was for Muhammad Hussain and his transferees to prove that Yasin was alive. They have not led any proof.
On the other hand, it has come on record and Muhammad Hussain admitted while in the witness box as D.W.1 that he is in possession of his N.I. Card which bears No.288-34-040861. A perusal of the said copy of the power of attorney shows that the alleged executant of the said document is the holder of the said I.D.Card No. This was thus, a case of out and out fraud. The learned Additional District Judge also lost sight of the fact that power of attorney as well as the subsequent sales made by the alleged attorney in favour of his son and nephew were so made during the pendency of the suit filed by the petitioner. The learned Additional District Judge also lost sight of the fact that in the process of passing the impugned judgment and decree he has also set aside that portion of the decree of the learned trial Court whereby the alienation made by respondent No.1 of the entire property in favour of respondents Nos. 2 and 3 had. Been set aside to the extent it exceeded the share of respondent No.1 in the estate of Chiragh Din. There is nothing in the impugned judgment to reconcile the two positions i.e. Alienation remaining intact in favour of respondents Nos.2 and 3 and thereafter the alienation by the respondent No.5 1/3rd share of Yasin in the estate of Chiragh Din in favour of respondents Nos.6 and 7.
6. In view of the above discussion I feel no hesitation in holding that the impugned judgment and decree passed by the learned Additional Distract Judge is without lawful authority and is liable to be interfered with in the revisional jurisdiction of this Court. This Civil Revision is accordingly allowed. The judgment and decree, dated 20-9-1989 passed by the learned Additional District Judge, Gujranwala is set aside while that passed by the learned trial Court on 14-6-1987 decreeing the suit of the petitioner is H restored with costs throughout.