Sardar Muhammad Mushtaq Khan and others petitioners have filed instant revision against Sardar Muhammad Parvez Khan and others, respondents to question the propriety of the judgment and decree dated 18-4-1994 passed by Additional District Judge, Haripur in Appeal No.6/13 of 1994 vide which the appeal of the petitioner in Suit No. 101 /1 of 1991, was dismissed.
2. Precisely narrated the facts are that Sardar M Parvez Khan and others plaintiffs instituted suit against Sardar Muhammad Mushtaq Khan and others defendants claiming a declaration to the effect that the power of attorney executed by them in favour of Muhammad Ashraf Khan defendant! No.7 has been rescinded vide registered revocation deed No.471 dated 25-8-1998 and thus, defendant No.7 had no authority to get attested Mutation Nos. 1218, 1223, dated 23-8-1990, 1150 dated 24-8-1989, 1148 dated 24-8=1989, 1176 dated 14-1-1990 and 1256 dated 28-3-1991 on behalf of plaintiffs by way of transferring the land of plaintiffs in favour of defendants. The authenticity and validity of the aforesaid mutations was brought under challenge and it was alleged that the same are illegal. Void, without authority and inconsequential qua the rights of the plaintiffs. A Kill prayer for grant of permanent injunction, restraining defendants Nos. 1 to ---6 and 8 to 17 to claim any right to the suit property, was also made.
3. The defendants in response to the summonses issued by the Court appeared and resisted by suit on all grounds legal as well as factual In view of the pleadings of the parties as many as 12 issues were framed. For the purpose of this revision I am concerned with Issues Nos.1, 6, 7 and 9 to 12 which are to the following effect:-- ,
(1) Whether the plaintiffs have got a cause of action?
(6) Whether the registered Abtal Nama No.471 dated 25-8-1988 is forged and fictitious hence inoperative upon the rights of defendants?
(7) Whether Mutations Nos. 1213, 1223 dated 23-8-1990, 1150 dated 24-8-1989, 1148 dated 24-8-1989, 1176 dated 14-1-1990 and 1256 dated 28-3-1991 havine been entered anti attested after execution of Abtal Nama have been attested without any proper authority are hence of no legal effect?
(9)Whether the rights of the purchasing defendants are protected under section 41 of T.P. Act?
(10)What is the effect of Mutation No. 1034 dated 27-10-1986, having been arrested in view of the orders of Peshawar High Court?
(11)Whether the plaintiffs are entitled to decree of declaration and perpetual injunction as prayed for?
(12)Relief.
4. Upon consideration of the evidence produced by the parties, the learned Senior Civil Judge, Haripur, seized of the matter decreed the suit through his judgment and decree dated 28-11-1993 holding that after the registration of 'abtal-nama' on 25-8-1988, defendant No.7 was left with no authority to interfere in the property of the plaintiffs in any manner and the transfers made by him on the basis of the impugned mutations were illegal and without authority and of no legal effect.
An appeal was preferred before the Additional District Judge, Haripur which met the same fate. The appeal was dismissed on, 18-4-1994 which has given rise to the filing of the Present revision petition.
5. Haji Ghulam Basit, Advocate appeared on behalf of the petitioners whereas Mr., Fida Muhammad Khan, Advocate represented the respondents. I have given my mature thought to the arguments and submissions of the learned counsel for the parties. I have also gone through the material on the record with their able assistance.
6. It has been vehemently contended by learned counsel for the petitioners that the judgments of the Courts below will show that important and vital aspects of the case have been disregarded and the material evidence having direct bearing thereon has been put at shelf and, therefore, the Courts have fallen into error of glaring non-reading of evidence which has resulted in miscarriage of justice. The learned counsel added that Sardar Muhammad Ashraf, the predecessor of the real respondents was the attorney duly authorised and with all the powers to transfer the property through any mode and the document of cancellation was without notice and information or knowledge of the petitioners and, therefore, in such a position the transfers could not be struck down under the law. Elaborating the argument, he contended that the cancellation deed in question is not at all legally effective and does not curtail the rights of the Attorney or the subsequent transferees in terms, of section 41 4f the Transfer of Property Act (IV of 1882). In the last leg of arguments; the learned counsel submitted that an application was made for amendment of the written statementwhich was rejected without justifiable reasons which has materially prejudiced the rights of the petitioners. He relied on AIR 1971 Madhya Pradesh 191 and AIR 1970 Madras 76.
7. Conversely, learned counsel for the respondents supported the impugned judgments and decrees. And maintained that the High Court in its revisional jurisdiction under section 115, Code of Civil Procedure, is not competent in undertaking its own appraisal of evidence in the face of the concurrent finding of the two Courts below, in the absence of any jurisdictional error or material irregularity. Revisional powers, he added, under the aforesaid provisions of law are primarily intended for correcting errors made by the subordinate Courts in the exercise of their jurisdiction.
Also ordinarily erroneous decisions of facts are not revisable except in cases where the decision is based on no evidence or inadmissible evidence was relied upon or the order sought to be revised is so perverse that grave injustice would result therefrom. The learned counsel contended that the power of attorney having been rescinded through a registered 'abtal-nama', Sardar Muhammad Ashraf attorney was bereft of the authority and was not competent to make subsequent transfers in respect of the property in suit. The learned counsel also submitted that the arguments addressed on behalf of the petitioners are contrary to the grievances ventilated in the revision petition which clearly tend to suggest that no case has been made out for interference of this Court under the revisional jurisdiction. To augment the contentions, he relied on 1994 CLC 1690 (Lahore); PLD 1997 Lahore 709; PLD 1996 Peshawar 86; 1997 SCMR 1811; PLD 1985 SC 341; 1994 SCMR 818; 1994 SCMR 826 and AIR 1938 Lahore 351.
8. A perusal of the material brought on record would reveal that Sardar Muhammad Ashraf was a big landlord of the area having 7/8 thousand Kanals of land in different villages, namely, Kokilian, Dingi and Chahar etc. He had two wives, Sardar Muhammad Parvez Khan is son, Mst. Hafiza Jan is the widow and Mst. Irshad Akhtar, Khalida Akhtar and Rashida Parveen are daughter of Sardar Muhammad Ashraf Khan. Likewise, Sardar Muhammad Mushtaq Khan, Sardar Aurangzeb, Sardar Jehanzeb, Sardar Haroon Rashid are sons whereas Mst. Wilayat Jan is widow and Mst. Sabia Khatoon is daughter of Muhammad Ashraf Khan. The plaintiffs had constituted Sardar Muhammad Ashraf Khan as their attorney on 25-11-1981 regarding their property. The power of attorney was rescinded on 25-8-1988 on the basis of a registered 'abtal-nama'. The case of the plaintiffs-- respondents is that Sardar Muhammad Ashraf Khan attorney was duly informed about cancellation of the power of attorney in his favour and as such he had no authority to transfer the suit property in favour-of the defendants-petitioners and thus, the rights of the transferees cannot be said to have been protected under section 41 of the Transfer of Property Act. As against this, the stand taken by the defendants-petitioners is that Sardar Muhammad Ashraf Khan was not informed about the cancellation, he went on acting as attorney without any objection from any quarter and that the cancellation is not legally effective and does not curtail the rights of the attorney. The submissions of the learned counsel are not tenable. There is sufficient evidence on the file to show that Sardar Muhammad Ashraf was duly informed about the cancellation that despite that he continued to make subsequent transfers to the detriment to the rights of the plaintiffs respondents. It is difficult to believe that Sardar Muhammad Ashraf, a big landlord of the area had no knowledge of the cancellation of the power of attorney executed in his favour. There can be no two opinion that where a power of attorney is revoked under registered deed of revocation, it become effective from the date of registration and it does not lie in the mouth of the attorney to assert that he had no knowledge regarding cancellation of the powers of attorney executed in his favour. So far as the rights of the subsequent transferees namely, Muzaffar and Safdar etc. Are concerned I find that their rights are not protected under section 41 of the Transfer of E Property Act as they do not appear to have made purchases from ostensible owner.
Necessary conditions for application of section 41 are that transferor should be the ostensible owner; his ownership should be by consent, express C or implied of the real owner; transfer should be made for consideration; and transferees had acted in good faith taking reasonable care to ascertain that transferor had power to transfer. 1992 MLD 1363. It needs no reiteration that attorney derives authority from the principal with regard to his property either for its management or alienation for a specific purpose. The agent has to act within the framework of the deed which is depository of the intention, rights, liability and authority of parties and cannot tranifer beyond its scope ID and purview of its recital. By reposing confidence in Agent, he is expected in law to act for the benefit of the principal. His conduct and performance of duty enjoined upon him is subject to certain commutations and militations. In the instant case, the Agent appears, to have put at stake the interest of his principal by )yay of transferring the suit property in favour of petitioners Nos. l to 6 to the disadvantage of the respondents. Some of the mutations are also shown to have been attested by the attorney during the subsistence of stay order granted by the trial Court.
9.Adverting to the application moved on behalf of the petitioners for amendment of the written statement I find that the learned trial Judge had good reasons to decline to accept the same and no prejudice appears to have been done to` the petitioners. It is true that Courts are not slow to allow amendpients in order to do complete justice between the parties but it is equally true that the amendments are refused when the same are aimed to E change complexion of the suit or raise a new plea different from the one taken in the written statement.
10.In the result and for the foregoing reasons I find that the impugned A&D judgments and decrees are not the result of misreading or non-reading of evidence warranting interference of this Court. The revision petition is F without substance. The same is hereby dismissed. The parties are left to bear their own costs.