ABDUL SHAKOOR PARACHA, J. -- Mst. Nooran, daughter of Muhammad, predecessor-in-interest of the respondents, herein, filed a suit for declaration against the petitioners/defendants stating therein that defendant No 1 is real brother of the plaintiff while defendant No. 2 is her nephew. It is alleged that the petitioners herein being brother and nephew approached the plaintiff to help them in purchasing a tractor and for this purpose they wanted to get loan from the Agricultural Development Bank of Pakistan pledging the suit property with it. But the defendants taking undue advantage of the advance age, close relationship and illiteracy of the plaintiff got executed power- of attorney bearing No. 303/4, dated 19.8.1989 in favour of defendant No. 2-petitioner No. 2 and on the basis of the said document the defendant No. 2 executed sale-deeds bearing No. 1325 and 1326, dated 22.8.1989 in favour of defendant/petitioner No. 1. The suit was resisted and from the divergent pleadings of the parties issues were framed. The learned Civil Judge, Chiniot on 12.10.1995 decreed the suit of the plaintiff while recording the finding on issues Nos. 4 and 5 and holding that power-of-attorney in favour of defendant No. 2 was based on fraud and on the basis of the said power-of-attorney sale-deeds Nos. 1325, 1326, dated 22.8.1989 executed by the consent in favour of father petitioner No. 1/defendant by petitioner No. 2/defendant were ineffective and illegal.
2. The appeal, filed by the petitioners was dismissed by the learned Additional District Judge, Chiniot vide his judgment and decree dated 16.4.2001.
3. The learned counsel for the petitioners has argued that Mst. Nooran, predecessor-in-interest of the respondents did not appear in the Court to substantiate her case therefore the learned Civil Judge has wrongly granted the decree in her favour. Further argued that the learned Civil Judge has not separately decided issues Nos. 4 and 5 and hence violated the mandatory provisions of Order XX, Rule 5, CPC. Finally it has been argued that the judgments of both the Courts below are result of mis-reading of evidence.
4. I have considered the arguments of the learned counsel and also perused the evidence, record attached with the petition, with the assistance of the learned counsel for the petitioners. Admitted position on the record is that Mst. Nooran was of advanced age of more than 70 years. She had four sons and nobody was accompanying her at the time of registration of the power-of-attorney.
Defendant No. 1/petitioner is real brother of Mst. Nooran. The general power-of-attorney was got executed in favour of Dost Muhammad son of defendant/petitioner No. 1 Saad Ullah (Saadli) on 19 8.1989. It is very strange that Mst. Nocran could have appeared before the Sub-Registrar on 19.8.1989 for registration of the general power-of-attorney, but why she could have not appeared on 22.8.1989 when the sale-deed was executed by Dost Muhammad, petitioner, No. 2 in favour of his father, petitioner No. 1 just after three days of registration of the alleged power-of-attorney. It is admitted by DW-1 Maqbool Ahmad that the plaintiff was alone at the time when she received the amount of sale. DW-5/defendant No. 1 in his cross-examination has admitted that he and Mst.
Nooran had not gone to the deed-writer but they remained sitting in the Tehsil Mosque, Chiniot and that defendant No. 2 had got written power-of-attorney. The learned Civil Judge held that the statements of DW-2 and DW-5 are interested and full of discrepancies. The onus of proving the execution of general power-of-attorney was on the petitioners-defendants. Illiterate advanced age Pardanashin lady has been given protection under the law. The facts and circumstances of the present case are fully covered by the rule laid down in case reported as Ghulam Ali and 2 others Vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Mst. Nooran, plaintiff, is a female Muslim.
According to the petitioners, their case is that Mst. Nooran executed general power-of-attorney in favour of her nephew, son of her brother Dost Muhammad of valuable property. The case decided in the above-noted judgment of the Hon'ble Supreme Court did not relate to the sale through mutation and the transaction involved therein was one of surrender of property by a female in favour of her brother. However, the question of alienations made by Muslim females in Pakistan was thoroughly dealt with and keeping in view the safeguards visualised in Islam as v. ell as in the Contract Act, insofar as the female alienators were concerned, were split out in detail. In case reported as Mst. Badshah Begum Vs. Ghulam Rasul and 4 others (PLD 1991 SC 1140), the requirements of law under the rule enunciated in the case of Ghulam Ali and 2 others (supra) were not satisfied in case regarding the alleged gift by a lady to her husband. The .Hon'ble Supreme Court in both the above-stated judgments held as a rule of law that:- "Muslim female involved in the case if was not Protected in the manner provided by Islam and the relevant law the suit has to be decreed."
On the touchstone of the above judgments of the Hon'ble Supreme Court, both the Courts were justified to grant decree in favour of Mst. Nooran, -plaintiff because she was not protected at the time of execution of the power-of-attorney in favour of Dost Muhammad, her nephew, on the basis of which the impugned transfer of her valuable property was made through- registered sale- deeds Nos. 1325 and 1326, dated 22.8.1989.
The contention of the learned counsel for the petitioners that since Mst. Nooran has not appeared before the Trial Court therefore the decree in her favour is not legal, has no force. Under Article 129 of the Qanun-e-Shahadat Order (X of 1984) party not appearing in support of its assertion and undergo test of cross-examination for ascertaining truth or otherwise of its claims, adverse presumption could be drawn against it, but where there is sufficient material on the record to prove the fact in issue, then mere failure of the party to enter witness-box to prove same fact was not fatal to his case. See the case of Anjuman-e-Islamia, Sialkot Vs Hall Muhammad Younas and 3 others (PLD 1997 LHR 153).
There is also no force in the contention of the learned counsel for the petitioners that the judgment of the Civil Judge is liable to be vitiated on account of non-recording of separate finding on issues Nos. 4 and 5. Suffice to say that the judgment which deals with all the points raised, fulfils the requirements of law even though it may not have discussed each issue separately. Reliance is placed on Umar Din Vs. Ghazanfar Ali and others (1991 SCM R 1816).
The plaintiff has proved the case that the power-of-attorney dated 19.8.1989 is the result of fraud and influence of her brother and nephew to deprive her of her property and, therefore, on the basis of the above-said power-of-attorney dated 19.8.1989 the sale-deed executed on 22.8.1989 by the son in favour of his father (defendants/petitioners Nos. 1 and 2) is also not effective, and both the Courts below have decided against the petitioners by giving concurrent finding of fact, which cannot be interfered by this Court in exercise of its revisional jurisdiction under Section 115, CPC as held in case reported as Azizullah Khan and others Vs. Gul Muhammad Khan (2000 SCM R 1647).
For what has been discussed above, this revision petition has no force and the same is dismissed in limine, with costs.