' JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment dated 3-4-2000 whereby learned Single Judge of High Court of Sindh, Bench at Sukkur, has accepted the revision petition preferred on behalf of Mst. Manna (respondent) from judgment and decree passed by learned Additional District Judge-III, Khairpur, dated 19-6-1996 confirming judgment and decree dated 21-2-1989 passed in F.C. Suit No,9 of 1989 by the learned Senior Civil Judge, Thari Mirwah.
2. Briefly stated the facts of the case as per impugned judgment are as follows:-- ' "Briefly stating facts are that the respondent No,1, step-son of the appellant filed a suit seeking declaration of his title in respect of transfer of one-third share of the appellant in the agriculture land which she held alongwith her two sisters.
' It was alleged by the respondent No,1 in suit that appellant through respondent No,2 (husband of applicant and real father of the respondent No,1) who was her general attorney as well, out of fondness for him and on account of advance age had directed him to transfer her share in property admeasuring 17 and 18 acres as 'Hiba bil Iwaz' on nominal price of Rs,15,000. In furtherance of her desire, respondent No,2 transferred her share in favour of his son by recording statement before Mukhtiarkar Mirwah on 26-6-1985. One of the conditions of Hiba as averred in the plaint was that the respondent No,1 would bear the expenses of applicant and respondent No,2 for the rest of their life and in default, entire property to revert back.
' It was further averred that on the instigation of other co-sharer applicant challenged the said transaction. In order to protect his interest suit was filed seeking declaration as to his title.
' Applicant contested the suit seriously. In her written statement she denied the entire transaction.
She averred that the power of attorney was for limited purposes, which too was revoked and she never instructed her husband to bestow her share in property unto respondent No,1 by way of 'Hiba bil Iwaz'. She further averred that there were serious disputes between the spouses and she had left the house of her husband and obtained decree of dissolution of marriage.
' Suit of respondent No,1 was decreed on 21-2-1989 but same was reversed in appeal by the Third Additional District Judge on 14-5-1991; which appellate judgment was set aside by this Court in Revision No,46 of 1991 and matter was remanded, for decision afresh, to the first appellate Court with direction to rehear the appeal and give detailed judgment after framing point of determination and examining the evidence of the parties."
3. After the remand the first appellate Court maintained the judgment and decree of trial Court vide judgment dated 19-6-1996 which was assailed before High Court of Sindh, Bench at Sukkur, by way of Civil Revision bearing No,77 of 1996 which has been accepted vide impugned judgment.
4. It is mainly contended by Syed Nasir Hussain Jafri, Advocate Supreme Court/Advocate-on- Record on behalf of petitioner that the impugned judgment is not sustainable in law and is liable to be set aside because the powers as conferred under section 115, C.P.C. Could not be exercised by the revisional Court unless the concurrent findings are perverse or arbitrary. It is next contended that the evidence which has come on record has not been appreciated in its true perspective by learned Single Judge which resulted in serious miscarriage of justice. In order to substantiate the said contentions it is pointed out that the land in dispute was transferred by Khushi Muhammad to petitioner as 'Hiba bil Iwaz' on the basis of power of attorney duly executed by Mst. Manna (respondent No,1) on 28-7-1961 and withdrawn on 3-7-1985 while the land was got mutated in favour of petitioner by way of gift on 26-6-1985 which aspect of the matter was not considered by the learned revisional Court without any lawful and justifiable cause and on this score along the impugned judgment is liable to be set aside. It is also pointed out that there is absolutely no variation between the pleading and the depositions of the witnesses of the petitioner which have been misconstrued and misinterpreted by the learned revisional Court. It is urged with vehemence that the material evidence of Khushi Muhammad (respondent No,2) has been discarded on the grounds which are not tenable in law. It is argued that the statement of Mst. Manna has not been examined properly who admitted in a categoric manner that power of attorney was executed in favour of Khushi Muhammad being her husband which shows that Mst. Manna had empowered Khushi Muhammad not only to look after the land in dispute on her behalf but also to transfer it in any manner whatsoever to anybody and thus, it cannot be held that no such powers were conferred upon Khushi Muhammad by Mst. Manna by virtue of power of attorney. It is contended that the factum of dissolution of marriage hardly renders any assistance to the case of Mst. Manna and undue weight has been attached to it by the learned revisional Court.
5. We have carefully examined the respective contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the impugned judgment, judgment and decree dated 21-2-1989 passed by learned Senior Civil Judge, judgment and decree dated 19-6-1996 passed learned Additional District Judge-III, Khairpur, confirmin& the judgment of the learned Senior Civil Judge, Than Mirwah. Let we mention here at the outset that we are conscious of the fact that "where the two Courts below had given strong reasons for raising inference against genuineness of the documents on the basis of all attending circumstances and such Courts were justified in raising those inferences, even if the High Court had formed its own opinion different from the Courts below. such findings of fact could not have been interfered with unless strong reasons had been given to reject such inferences -- Different view on reappraisal of evidence, could not be a ground for interference with such findings of fact of the two Courts below in exercise of jurisdiction under section 115, C.P.C. By High Court." (2000 SCM R 431). But the concurrent findings as derived by learned trial and appellate Courts are not in accordance with law and it appears that the evidence was never examined properly before deriving the concurrent findings. We are of the considered opinion that if the concurrent findings are perverse, arbitrary or fanciful the same cannot be termed as 'sacrosanct' and can be interfered with.In this regard reference can be made to 2000 SCM R 974 at 986 wherein it was observed as follows:-- ' "It is trite law that if the concurrent findings of the Courts below are the result of misreading of evidence on record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C."
6. A careful scrutiny of the entire record would reveal that the evidence which has come on record has not been thrashed out properly either by the learned trial Court or appellate Court which resulted in serious miscarriage of justice. In view of the peculiar circumstances of this case and sufficient lawful grounds the interference by learned Single Judge in exercise of powers as conferred upon him under section 115, C.P.C., by no figment of any imagination can be termed as unlawful and, therefore, we have not been persuaded to agree with Syed Nasir Hussain Jafri, Advocate Supreme Court that concurrent findings once derived could not be interfered. The case of prosecution revolves around the power of attorney duly executed by Mst. Manna in favour of Khushi Muhammad on 28-7-1961 coupled with the statement of Khushi Muhammad got recorded before Mukhtiarkar (Exh.29 copy of Dakhal Kharej) duly witnessed by Muhammad Sharif and Muhammad Munshi. At first instance we intend to examine as to whether the land in dispute could have been transferred on the basis of general power of attorney or otherwise? In this regard the pivotal question which needs determination is as to whether Khushi Muhammad (respondent No,2) was competent to get the property in dispute transferred, admittedly belonging to Mst. Manna (respondent No,1) by way of 'Hiba-bil-Iwaz' to his real son? It is, however, an admitted position that power of attorney was got executed by Mst. Manna on 28-7-1961 which was withdrawn on 3-7-1985 and the land in dispute was transferred by way of 'Hiba-bil-Iwaz' on 26-6-1985. It is well settled by now that 'the power of attorney must be strictly construed and it is necessary to show that on a fair construction of the whole instrument the authority in question may be found within the four corners of the instrument either in express terms or by necessary implication". AIR 1928 Bom.
225. In such-like cases subsequent disputes and controversies have become a common phenomena in our society and in this background a similar proposition was discussed in case titled Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341 with the following observations:-- ' "It is wrong to assume that every 'general' power-of-attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the power-of-attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deduceable from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation. The second aspect which needs caution on question of validity of acts under a power of attorney is that notwithstanding an authority to alienate principal's property, the attorney is not absolved from his two essential obligations, amongst others---firstly in cases of difficulty (and it will be a case of difficulty if the power of attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions; and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction."
7. In the light of the touchstone of criterion as laid down hereinabove the case in hand has been examined. It is worth mentioning that Mst. Manna has denied in a categoric manner that any authority regarding transfer of the land in dispute was conferred upon Khushi Muhammad. She, however, admitted that Khushi Muhammad was empowered to manage the land in dispute but he was never authorised for sale or its disposal in any manner whatsoever. She also pointed that being illiterate she was not aware regarding the implication and far-reaching effects of the power of attorney being unaware about its contents. She also denied in a crystal clear manner that the land was transferred to petitioner by way of 'Hiba-bil-Iwaz'. Her statement is also indicative of the fact that she had strained relations with her husband namely, Khushi Muhammad. At this juncture it is worth mentioning that she had not admitted regarding his statement ever got recorded by Assistant Commissioner, Mirwah. The factum of transfer of land by way of 'Hiba-bil-Iwaz', constrained relationship between Mst. Manna and her husband Khushi Muhammad and denial of authority for transfer of land went unchallenged which amounts to admission on the part of petitioner.
8. We have also observed that the petitioner could not substantiate his claim by adducing cogent and concrete evidence but on the contrary glaring contradictions were found in the averments of the plaint and in the evidence as led by the petitioner in support thereof. The petitioner could not prove that Mst. Manna had gifted this land. A futile attempt seems to have been made by the petitioner that the alleged 'Hiba-bil-Iwaz' was made in presence of Muhammad Sharif and Muhammad Munshi but they both had not supported the said version and it could not be proved that the land in dispute was gifted in presence of Muhammad Sharif. In the similar wake of events it has been observed further that Muhammad Munshi has also not supported the version of petitioner and stated in a categoric manner that he stood witness to the statement of Khushi Muhammad got recorded before Mukhtiarkar (Exh.29-Dakhal Kharaj) which itself does not support the claim of petitioner as Khushi Muhammad has stated in unambiguous manner that in pursuant to the instructions of Mst. Manna land was sold to Muhammad Akhtar (Petitioner) against consideration of Rs,15,000. The said statement does not find any mention that Khushi Muhamamd was authorised to transfer the land in favour of his son by way of 'Hiba-bil-Iwaz'. The petitioner has attempted to show that gift was made orally by Mst. Manna but there is no evidence in support of said assertion. It is quite amazing that the son (petitioner) says that land was gifted in his favour while his father (Khushi Muhammad) on the contrary says that the land was sold to him and thus, it has become really difficult to reconcile the two contradictory pleas. We are of the considered view that the evidence has not been examined in-depth and thus, it is a case of sheer misreading and non-reading of evidence which resulted in serious miscarriage of justice and has rightly been reversed vide impugned judgment which being free from any legal infirmity does not call for any interference.
9. There is another noticeable factor that the possession of subject land was never handed over to the petitioner which is an important ingredient of 'Hiba-bil-Awaz' and mutation simpliciter could not be considered as an exclusive proof of ownership which is a presumption subject to rebuttal.
Even otherwise mutation was got done on the basis of sale which has nothing to do with 'Hiba-bil- Iwaz' where it is established that there had been miscarriage of justice on account of the fact that the trial and appellate Courts have not appreciated the evidence properly and with due care and caution, the concurrent findings become amenable to the revisional jurisdiction of High Court which has rightly been exercised.
10. In the light of what has been stated above we are not inclined to grant leave and, accordingly, the petition is dismissed being devoid of merits.
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