' MIAN SAQIB NISAR, J.---The respondent No,1 being owner of the property in dispute i,e, Property No,1-481 situated in Chowk Nawab Shaib inside Mochi Gate, Lahore filed a suit for possession and mesne profit against the appellants (his real brother) and respondent No,2 (wife of the appellant).
This suit was contested by the appellant and on the basis of pleadings of the parties, following issues were framed:--
(1) Whether the suit is false, mala fide, and is misconceived? OPD
(2) Whether the suit is premature and is liable to be dismissed in view of the preliminary objection No,3 of the written statement? OPD
(3) Whether the suit is barred by time? OPD
(4) Whether the defendants are in continued possession of the suit land since March, 1977? OPD
(5) Whether the plaintiff has been estopped by his words and conduct? OPD
(6) Whether the plaintiff has no 'cause of action? OPD
(7) Whether the plaintiff is owner of the disputed property? OPP
(8) If Issue No,7 is proved, whether the plaintiff is entitled to the decree as prayed for? OPP
(9) Relief.
' The learned trial Court by giving findings almost on all the issues, particularly on Issues Nos.7 and 8, in favour of the respondent No,1, decreed the suit vide judgment and decree dated 30-6-1998.
2. The learned counsel for the appellant contends that the judgment and decree of the trial Court is based upon misreading and non-reading of the evidence. It is argued that earlier the said respondent had filed an ejectment application against the appellant, which was resisted and as per the findings of the learned Rent Controller, as also the learned Court in appeal, it was held that the appellant is not tenant of the property; now the case built up by the respondent, that the appellant is a licensee, is also baseless, because no licence is established; in fact, the appellant has been in possession of the property on the basis of a valid power of attorney and because, such power of attorney has not been revoked so far, thus, until and unless, it is so rescinded, no suit for possession can be maintained against the appellant. It is also submitted that the appellant is actual and real owner of the property, whereas the respondent No,1 is only a Benamidar. Lastly, it is contended that the suit had not been instituted by the said respondent, because the plaint does not bear his signatures.
3. The learned counsel for the respondents supported the judgment and decree of the trial Court and stated that the appellant has lost the issue of "Benami" in the earlier round of litigation, when his suit for declaration was dismissed, his appeal failed and in Revision Petition No,684 of 1993, it was conclusively endorsed by this Court that the appellant is not the actual true owner of the property, rather the proprietorship vests with the respondent No, 1.
4. We have heard the learned counsel for the parties. The respondent has brought the suit under the provisions of section 8 of the Specific Relief Act and in order to prove his entitlement has brought on the record sale-deed, dated 14-3-1977, through which, he purchased the property. The appellant is real brother of the respondent No,1 and due to such close relationship holds the possession, otherwise, the appellant has failed to prove the legal basis of his possession of the suit property and has not shown any valid ground to resist the suit. Undoubtedly, the respondent No,1 as an owner of the property is entitled to seek the possession, particularly, when in the earlier round of litigation under the provisions of Rent Restriction Ordinance, the appellant has denied the relationship of tenancy and in the second round of litigation i,e, suit for declaration, his plea about Benamiship has been rejected. Now if, there is no tenancy between the parties and the appellant is also not the owner of the suit property and has also claimed no legal entitlement to hold the possession, then how on the basis of some power of attorney, he can protect his possession. The arguments that as the appellant had possessed the property under a power of attorney and such power of attorney has not been revoked, suffice it to say that for the purpose of claiming the possession from an agent, it is not necessary to first revoke the authority, when it is not shown that the agent has any interest in the subject-matter of the tenancy protected under the provisions of section 202 of the Contract Act. Even otherwise, by virtue of the ejectment application, as also in view of the suit declaration earlier filed by the appellant, revocation of any power of attorney in favour of the appellant by the respondent No,1 has lost its significance and it necessarily stood revoked by the conduct of the parties.
5. As regards the argument that the suit was not instituted by the respondent No,1, this fact is belied by the record. Moreover, the respondent No,1 has appeared in the witness-box and has owned the institution of the present suit, which even otherwise is a curable defect and can be cured at any stage of the proceedings, thus has no material effect on the main controversy between the parties.
Further the appellant has never controverted the invalid institution of the suit by the respondent No,1, in the written statement; no issue was framed. At this belated stage, the appellant cannot take up the plea not forming part of the original proceedings. Last submission that the mesne profits granted by the trial Court are exorbitant, we have perused the record and find that the mean profits are rather on the minimal side of R.2,000 per month, thus there is no justification to reduce this amount.
' In the light of above, this appeal has no merits and is hereby dismissed.