MAULVI ANWARUL HAQ, J.---This judgment shall decide R.F.A. No,173 and R.F.A. No,174 of 1993 as they proceed against a common judgment of the learned trial Court.
2. The appellants in both these cases filed two suits, one in respect of property located in Chak No,203/RB, Mananwala, Telisil and District Faisalabad (Regular First Appeal No,173 of 1993) and the other in respect of land located in Chak No,202/RB, Faisalabad (Regular First Appeal No,174 of 1993).
It was stated in the plaints that the said land was owned by Fateh Muhammad who died on 25-1- 1978. He was survived by a widow, namely, Hamida Begum, a son, namely, Rana Nasarullah Khan Babar (respondent No,1), daughters Mst. Nargas Begum (appellant No,1), Shafqat Begum (predecessor-in-interest of Appellants Nos,2 to 9) and Bismillah Begum (respondent No,6). The land devolved upon the said Muslim Law heirs and inheritance mutations in the two revenue estates were accordingly attested; that brother of the ladies represented that some proceedings will have to be conducted in the matter of inheritance and other matters pertaining to the estate as also its management including the matters of tenants and produce etc. He, therefore, obtained their signatures on blank stamp papers. It was asserted that appellant No,I or Shafqat Begum deceased never appeared before any scribe or Registrar. Later on they came to know that she proceeded to gift away the land in Chak No,202/RB to his sons who further alienated the land to the vendee defendants. Regarding the land in Mananwala Chak No,203/RB a portion was gifted by him to his wife and remaining portion sold out to vendee/defendants. All these transactions were challenged as illegal and void on the plea that they had never authorised their brother to gift away or alienate the land and as such the power of attorney dated 27-12-1978 was never executed or got registered by the said two sisters, namely Nargas Perveen and Shafqat Begum.
3. Both the suits were resisted by the said Rana Nasarullah Khan and donees and the vendees, who claimed that the power of attorney was validly executed and the other transactions made on the basis of the same arc valid. Both the suits were consolidated vide order dated 24-5-1993 and issues were framed. For the purpose of this judgment we are reproducing the relevant issues Nos, 1, 8 and 15 there:--
(1) Whether the plaintiffs are owner in possession of the suit-land as co-sharer in the joint Khata, being the legal heirs of one Fateh Muhammad and Mst. Shafqat Begum and the impugned General Power of Attorney No,3835 dated 27-12-1978, Mutation No,1095 dated 12-9-1981, sale-deed No,306/1 dated 12-6-1989 in favour of the defendants Nos, 4 to 7 for a consideration of Rs,10.00.000 is based on fraud, collusion and therefore, are against law and facts, illegal, void, ineffective and inoperative upon the rights of the plaintiffs? OPP
(8) Whether the plaintiffs are owners in possession as co-sharers of suit-land of Suit No,154-I of 1993 in the joint Khata as legal heirs of Fateh Muhammad and Mst. Shafqat Begum (deceased) and the impugned General Power of Attorney No,3835 dated 27-12-1978, is based on fraud, collusion, is against law and facts, illegal, void, ineffective and inoperative, without authority and a result of forgery? If so, whether all the mutations mentioned in the head note of the plaint are illegal, void and ineffective upon the rights of the plaintiffs? OPP. Suit No,154-1.
(15) Whether the defendants Nos, 7 for 25 are bona fide purchasers of the disputed property for value without notice? OPD 7 to 25.
Evidence of the parties was recorded. The learned trial Court vide consolidated judgment and decree dated 28-6-1993 dismissed both the suits.
4. Against the said consolidated judgment and decree the present two R.F.As. were filed. These R.F.As. were heard on 1-11-1995 when they were allowed. The judgments and decrees of the trial Court were set aside and the suits were decreed as prayed for. Against the said judgments and decrees dated 1 - 11-1995 C.A. No,1223 of 1996 was filed by the present respondents Nos, 16 to 19 while C.P.L.A. No,971-L of 1996 was filed by some other respondents. Both these matters were taken up on 21-2-2001. C.P. No, -971-L of 1996 was dismissed for non-prosecution. C.A. No,1223 of 1996 .was allowed by the Supreme Court of Pakistan. It was made clear in the judgment that neither the said attorney nor the donees have preferred any appeal and the decree of the High Court so far as they are concerned, has attained finality. The civil appeal was allowed on the following terms:- We therefore, while accepting this appeal reverse the judgment of the High Court as far as the claim of the appellant is concerned and remand the case to the High Court to give a definite finding regarding the genuineness or otherwise of the power of attorney on the basis of evidence on record and also decide the correctness or otherwise of the factum of sale on the basis of said power of attorney in favour of the present appellant."
5. It will thus be seen That so far as Regular First Appeal No, 174 of 1993. is concerned, the matter stands ' finalized. Similarly, so far as Regular First Appeal No,173 of 1993 is concerned, the factum of the power of attorney and consequently that of the sale on the basis of said power of attorney in favour of present respondents Nos, 16 to 19 only is to be determined. We, therefore, proceed accordingly.
Learned counsel for the appellants contends that the original power of attorney is not available on record and as such there was no question of proof of the same. Further contends that the execution of the power of attorney has not been proved in tact or in law. Regarding consequent sale by the attorney in favour of the said respondents, learned counsel ,argues that they failed to make out a case of bona fide purchase without notice and with consideration.. Learned counsel for respondents Nos,16 to 19. on the other hand, argues that the original was available and that the witnesses deposed reference to the original document and all available' evidence was produced to prove the execution of power of attorney. Insists that his clients are bona fide purchasers.
6. We have gone through the trial Court record with the assistance of the learned counsel present.
We find that the said first contention of the learned counsel also is rather misconceived. Record shows that in the first instance an application was filed by the appellants calling upon Rana Nasarullah respondent to produce the original power of attorney. This document was produced on 24-1-1990 alongwith a photocopy. The photo copy was compared by the learned trial Court with the original and the original was returned to Nadeem Badar, the respondent who had produced the document. We also find an application dated 12-7-1993 on the record (this is a date subsequent to the date of decision by the learned trial Court) requesting that the original power of attorney be returned. The order was accordingly passed. 'A certified copy was placed on the record and the original was returned.
7. The document produced in lieu of the original is present at Pages 187 and 1-88 of the trial Court file. It narrates that Mst. Hamida Begum, widow and Bismillah Begum, Shafqat Begum and Nargas daughter of Fateh Muhammad Khan are appointing Nasarullah Khan Babar as a general attorney to conduct all proceedings pertaining to their entire movable and immovable property in Pakistan.
The document then narrates that the general attorney will be authorized to sell, mortgage, exchange, lease or to gift ) the property, to receive consideration, cheques to get the same encashed. to purchase stamps, to execute sale-deeds and present the same for registration and to conduct proceedings in all concerned departments as also to act for them in Courts. This document bears the date 27-12-1978 and was registered on the same date. We will be referring to this document as Exh.D.1 which was the exhibit of the document. To prove its execution, the respondents produced Muhammad Shahbaz Khan, D.W.2. This witness states that he knows the said ladies and Exh.D.1 was scribed- in his presence and bears his signatures as a witness; that Qarar Khan was his brother who is dead and that Exh.D.1 also bears signatures of Qarar Khan who had signed the document in this presence; that when the document was registered, the ladies had signed in his presence. There is a note by the learned trial Court that the learned counsel for the defendants who was examining the said witness tried to put it in his mouth that the document was executed by the ladies in his presence which was objected to by the learned counsel for the plaintiffs. We may note right here that the witness has not stated that the document was signed by the ladies when it was scribed. In his cross-examination he cannot say as to on what date Hamida Begum died. He does. not know as to whom the three sisters are married and where are they married. He is unable to state as to whether they have children or their details. He states that the document was scribed 21/2 or two months after the death of rather of the ladies. He insists that he and Qarar Khan were present alongwith the executants before the scribe. He does not know as to who brought the stamp paper. He states that details of the land was stated in the document and he had read the same and he remembers that the land at Manawala as mentioned but other details he has forgotten.
9. The other witness is D.W.4 Imtiaz Ahmed. He states that he had scribed Exh.D.1 on 27-12-1978 and entered the document in his register at No,2196 and that the executants had signed in his presence on the document as well as his register. In his cross-examination he admits that he did not personally know the executants. The ladies were observing Parda and were brought to him by Nasarullah Khan Babar. He says that he had not seen the NICs of the ladies and that the Numberdar of the village had identified them. D.W.5 is Rana Nasarullah Khan, the alleged attorney.
He says that his mother and sisters had appointed him as an attorney and the power of attorney was given in the Tehsil on 27-12-1978 and that they had thumb-marked the document. This is the entire evidence.
10.So far as the scribe D.W.4 is, concerned, nothing turns on his statement as he does not know the ladies. So far as. Shehbaz, D.W.2 is concerned, a bare reading of his cross-examination would show that he did not at all know the ladies. Shehbaz D.W. says that the document was scribed about two months after the death of Fateh Muhammad. Admittedly Fateh Muhammad died on 25- 1-1978 whereas according to D.W.4 the document was scribed on 27-12-1978 and this is the date the document bears. The statement of three witnesses are absolutely discrepant. Rana Nasarullah D.W.5 Perhaps had not even seen this document. He says that power of attorney that was scribed on 27-12-1979 was thumb marked by his mother and sisters whereas the document produced bears the signatures of all the ladies. Even in photocopy available at pages 187 /188 of the file one need not be an expert to observe that there is a marked difference between the signatures of all the four ladies on the face of the document and those on the back of the document under the endorsement of the Registrar. Above all we find that Nargas plaintiff entered the witness box as P.
W.1 and proceeded to make a statement in line with her plaint. We find that although she was cross-examined she was not at all confronted with the document Exh.D.1 when according to Nasarullah Khan` she is a literate lady. We are, therefore, unable to sustain the findings of the learned trial Court; that the execution of the said document was proved by the respondents and accordingly hold that the execution of the power of attorney has not been proved.
11. Coming to the said second question, as to the validity or otherwise of the sale in favour of the said respondents Nos,16 to 19. These respondents have proceeded to purchase a total of 4 Kanals, 4 Marlas and 4-1/2 Sarsahis of land. The land has been sold in four parcels of 1 Kanal, 1 Marla and 1- 1/8 Sarsahis each, each to respondents Nos,16, 17, 18, 18-A) and 19. The sale was effected by means of four registered sale-deeds on 2-6-1979. On the basis of these sale-deeds Mutations Nos, 1951, 1952, 1953 and 1954 were attested on 13-9-1979. We find that these respondents are residents of Faisalabad. Out of these Muhammad Umar respondent No,17 has appeared as D.W.7. He has stated that he and his co-vendees have purchased the land in the form of plots and that they purchased the plots. They inspected the land and also checked up the ownership whereafter they purchased it from Rana Nasarullah who was attorney of his sister and that they had seen the power of attorney which was registered. In his cross-examination he admitted that no inquiry was made from the executants of the power of attorney when he was aware that they are ladies. To our mind the bona fide inquiry has not been proved on -the recovered by the said respondents. The said.
D.W.7 admits that the document had been executed by ladies and this circumstances should have put them on notice to ensure that the document had been validly executed by the ladies. This was not done, We, therefore, find that they cannot be termed as bona fide purchasers. We, however, find that the effect of the judgment of the Supreme Court of Pakistan in C.A. No,1223 of 1996 is that the judgment of this Court qua the attorney and the donees stands finalized. In fact only the matter of the sale in favour of respondents Nos, 16 to 19 remains to be seen. The land in Chak No,203-RII Mananwala measures 48 Kanals 4 Marlas and 4-1/2 Sarsahis. This devolved upon the widow, a son and three daughters of late Fateh Muhammad Khan. Thus share of Nasarullah Khan in the land comes to 14/40 and this was the land he was holding at the time he made the sale in favour of respondents Nos, 16 to 19. It will be pertinent to note here that all the said heirs of Fateh Muhammad Khan are shown to be the vendors of the said. respondents Nos, 16 to 19. He is thus owner of about 16-'/2 Kanals of land in the said land. The sale in favour of respondents Nos, 16 to 19, therefore, can be easily adjusted against the share of Nasarullah Khan. We may further add here that the mother of the parties also owned about 6-'/2 Kanals of land and on her death as well about 1-1/2 Kanals land devolved upon Nasarullah Khan. Besides the third sister Bismillah. Begum had not questioned the sales. Therefore, we find that the said sales of a total area of 4 Kanals, 4 Marlas and 4-V2 Sarsahis in favour of respondents Nos,16 to 19 are not liable to be annulled as the same are within the entitlement of Nasarullah Khan himself. We therefore, hold that the sales in favour of the said respondents Nos, 16 to 19 are valid for the reason that Nasarullah Khan himself was entitled to sell that much area to the said respondents. As a result of the above discussion R.F.A. No,174 of 1993 already stands allowed vide judgment dated 1-11-1995 of this Court and finalized vide judgment dated 21-2-2001 of the . Honourable Supreme Court of Pakistan. So far as Regular First Appeal No,173 of 1993 is concerned, the matter of Rana Nasarullah Khan and his donees also stands thus finalized i,e, the gift made by him and the further transaction by the donees stand annulled. R.F.A.
No, 173 of 1993 thus stand partly allowed i,e, the judgment and decree dated 28-6-1993 of the learned trial Court is set aside and the suit of the appellants stand decreed except to the extent of sale of 4 Kanals. 4 Marlas and Sarsahis in Chak No, 203-RB, Mananwala, Tehsil and District Faisalabad in favour of respondents Nos, 16 to 19 for reasons state above. No orders as to costs.