AMANULLAH KHAN YASINZAI, J.--Through this Regular First Appeal under section 96, C.P.C., the, appellant has challenged the judgment and decree dated 12--9-2000, passed by learned Civil Judge-IV, Quetta, whereby suit filed by the appellant has been dismissed.
2. Succinctly facts in the background are that the appellant filed a suit for Declaration, Possession, Permanent Injunction, Partition, Cancellation of Documents and consequential relief in the Court of Senior Civil Judge-I, Quetta, on 8-7-1997. The case was transferred to the file of learned Civil Judge-IV, Quetta. It was averred in the plaint that the appellant and respondents Nos.1 to 3 are sons of late Mirza Muhammad Amin who owned property bearing Municipal Nos.396/1 and 396/1-A, situated at the corner of Jinnah Road and Hali Road, Quetta, Cantt. That on the former No. a bungalow was constructed and latter No. a hotel known as Old China Restaurant was constructed.
That after the death of their predecessor, both the properties were mutated in the name of appellant and respondents Nos. 1 to 3. It is further averred that the appellant shifted to Karachi in the year 1986 and the respondent No. 1 Pervaiz Iqbal came to Karachi and apprized the appellant that they have decided to sell the Old China Restaurant to Syed Saeed Hashmi, respondent No.6 and informed him that the share of the appellant is Rs.6,00,000 which was received by the appellant, as his share in the Old China Restaurant only, in this regard, a power of attorney was also signed by him and duly registered with the Sub-Registrar, Karachi, for disposal of Old China Restaurant. It is further stated that respondent No.1 deft Karachi and assured that a copy of power of attorney will be sent but was never done so. In the year 1993, he came to know that China Restaurant has been sold and his name has been deleted as owner qua Bungalow No.396/1.
3. After coming to know about the said facts, he applied to Sub-Registrar, Karachi on 20-9-1993 and obtained a certified copy of the power of attorney. Thereafter, he filed an application for recession of the same which was accordingly revoked on 20-11-1993 by the Sub-Registrar, Karachi.
Thus the appellant approached the Military Estate Officer, Quetta, to insert his name in the record as owner regarding the Bungalow. He was informed that on the basis of the power of attorney, a relinquishment deed was prepared on 13-8-1986 by the respondent No.6. Thus on the basis of same, his, name was deleted as owner from the record. Thereafter; he approached the respondents and the MEO for correction of the record, but all in vain and filed the instant suit seeking the following relief:-- "It is accordingly respectfully prayed that a judgment and decree in favour of the plaintiff and against the defendants jointly and severally may be passed to the following effect:
(a) That deletion of name of the plaintiff from the record of the Military Estate Office out of his property bearing No.396/1 situated at Hali Road, Quetta be declared as illegal and void.
(b) That the relinquishment deed executed on 13-8-1986 be also declared as illegal and void and without any legal effect.
(c) Possession of the property with partition to the extent of the share of the plaintiff be also delivered to him;
(d) Restraining permanently the defendants Nos. 1, 2 and 3 from alienating, selling, mortgaging or delivery of the possession to any other person.
(e) To declare that power of attorney dated 17-7-1986 registered with the Sub-Registrar, Karachi in favour of Mr. Saeed Hashmi respondent No.6 was only to the extent of 396/1-A, Jinnah Road, Quetta Cantt. And not for property bearing No.396/ 1, Hali Road, Quetta Cantt.
(f) Any other relief be also granted as is deemed fit and proper in the circumstances of the case in the interest of justice. "
4. The respondents Nos. 1 to 3 filed a joint written statement and contested the suit filed by the appellant. The respondent No.6 filed separate reply repudiating the claim of appellant. It was mainly averred in both the written statements that the plaintiff has not come with clean hands and had concealed material facts. Stand of all the respondents was that after the death of the father of appellant and respondents Nos. 1 to 3, an arbitration agreement was executed on 12-8-1991 and sole arbitrator was appointed to distribute the property left by their predecessor. The award was given on 13-8-1991 and thereafter, on the application filed by the appellant himself before Civil Court, the award was made rule of the Court. As per decision of the arbitrator, the appellant received Rs.6,00,000, thus executed a power of attorney in favour of respondent No.6 and after receiving the entire amount, his name was deleted and it was prayed that the suit be dismissed.
Out of the pleadings, following issues were framed:-- "(1) Whether the suit filed by the plaintiff is maintainable under L/Os' ' C', ' D', 'F', 'H' of W/S?
(2) Whether the arbitration/took place between the plaintiff and defendants Nos. 1 to 3 and the said arbitration award was made rule of Court on 30-9-1981?
(3) Whether the property in dispute has been mentioned in the arbitration award which was made rule of Court with the consent of plaintiff?
(4) Whether the plaintiff received an amount of Rs.6,00,000 through Habib Bank Draft No. DCW 54359/30/95 dated 26-7-1986 from defendants Nos.1 to 3 and executed an agreement dated 27-7- 1986 and relinquishment deed dated 13-8-1986?
(5) Whether the plaintiff is entitled for the relief claimed for?
(6) Relief.
5. In support of his contention, the appellant produced P.W.-1 Anwar Ahmed, P.W.-2 Umar Zarin Khan, P.W.-3 Hakim Ali Shahzad, Record Keeper, MEO. He produced documents Exh.P/1 to Exh.P/3.
P.W.4 Muhammad Saleem, Sub-Registrar, Karachi. He produced documents Exh.P/4 to Exh.P/5 i.e. Power of attorney executed by the appellant in favour of respondent No.6 and the revocation deed.
P.W.-5 Abdullah, representative of Habib Bank Limited, he produced documents Exh.P/6 and Exh.P/7, photo copy of the cheque of Rs.6,00,000 and telegraphic transfer pay order issued in favour of the appellant. P.W. 6, Shamshad Ali. P.W.-7 Siraj-ud-Din, he is an attesting witness to P.W.-6. However, he was confronted with the documents D.W.-1 i.e. Disclaimer of right coupled with relinquishment deed and the appellant got recorded his statement. The respondents confronted the appellant with the documents Exh.D/1 to Exh.D/5., Arbitration agreement, sale of property vide registry, dated 20-4-1982, Arbitration award, application filed by the appellant under section 20 of the Arbitration Act, and order of the Court making the Arbitration Award rule of the Court. Deed of disclaimer of the right coupled with relinquishment and sale deed dated 20-4-1982 and agreement, dated 23-7- 1986. In rebuttal the respondents produced D.W.-1 Manzoor Ahmed who produced the documents Exh.D/7 to Exh.D/8 i.e. Disclaimer of right coupled with relinquishment and Arbitration agreement receipt of Rs.6,00,000 acknowledged by the appellant and statement of respondent No.3 was recorded for himself as well as attorney for respondent Nos.1 and 2. Syed Wahab Shah appeared as attorney for respondent No.6.
6. After hearing the parties, learned Civil Judge-IV, Quetta dismissed the suit of the appellant vide impugned judgment and decree dated 12-9-2000, hence the instant appeal.
7. We have heard Mr. Chaudhry Muhammad Arshad, Advocate, for the appellant, Mr. Imran-ul-Haq, Advocate for the respondents Nos.1 to 3 and Mr. Mujeeb Ahmed Hashmi, Advocate for respondent No.6.
8. Mr. Chaudhry Muhammad Arshad, learned counsel for the appellant contended that the very power of attorney was obtained fraudulently and inasmuch as, registration of the same before the Sub-Registrar, Karachi was without lawful authority. Thus subsequent documents executed on the basis of the same were also not valid. He further contended that since the property was situated at Quetta, therefore, the Sub-Registrar, Karachi, under the Registration Act had no authority to register the same. Learned counsel in support of his contention relied upon the following cases:--
(1) PLD 1965 Azad J & K 1 Abdul Hakim alias Abdul Karim etc., v. Ali Muhammad etc.,
(2) PLD 1967 Azad J & K 85 Mst. Noor Jehan v. Feroza and others
(3) 1999 SCMR 1245 Abdul Majeed and 6 others v. Muhammad Subhan and 2 others.
(4) 2001 CLC 1087 Ghulam Bheek and others v. Mst. Salamat Bibi and others.
(5) 2001 MLD 725 Mst. Rashida Begum v. Muhammad Ameen and 4 others.
(6) PLD 1998 Lahore 137 Muhammad Tufail v. Abdul Aziz through Legal Heirs.
9. Learned counsel for the appellant also referred to Articles 78 and 79 of the Qunan-e-Shahdat regarding authenticity of the power of attorney.
10. Mr. Imran-ul-Haq Khan, learned counsel for the respondent Nos. 1 to 3 contended that the appellant is not entitled to discretionary relief, as he has not come with clean hands and had concealed material facts. Learned counsel further contended that after the death of appellant and respondents regarding distribution of the property, a sole arbitrator was appointed who gave his award and the appellant himself filed an application requesting therein to make the award rule of the Court and on the basis of the same, power of attorney was executed, wherein he has received his share of the property. Learned counsel stated that power of attorney was executed in favour of respondent No.6 and there is no bar for registration of the power of attorney, at a place other than, where the property is situated. Learned counsel relied upon the following case-laws:-
(1) PLD 2001 SC 158 Haji Abdullah and 10 others v. Yahya Bakhtiar
(2) 1989 SCMR 704 Muhammad Aslam and another v. Mst. Sardar alias Noor Nishan.
(3) 1986 CLC 96 Shahidun Nabi and 2 others v. Hashmatullah and another.
(4) 2000 MLD 1459 (Lahore)
Muhammad Aslam and 8 others v. Rehmat Ali and 8 others
(5) 1993 SCMR 462 Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others.
11. Mr. Mujeeb Ahmed Hashmi, appearing on behalf of respondent No.6 contended that the appellant is estopped by his conduct to challenge the power of attorney and, subsequent documents executed on behalf of the appellant, by his attorney.
12. Coming to the arguments of Mr. Chaudhry Muhammad Arshad, learned counsel for the appellant that since the property was situated at Quetta, therefore, the Registration at Karachi was not valid. It may be observed here that the case of the appellant before the trial Court' was that he had executed a power of attorney in respect of property bearing No.396/1-A (Old China Restaurant) and not in respect of property bearing No.396/1, on which the Bungalow was constructed and further he came to know that his name has been deleted as owner qua the property, in the year 1993. It may be observed here that as far as execution of the power of attorney is concerned, the same has not been disputed by the appellant. Further the general power of attorney was executed in favour of respondent No.6 regarding the Bungalow, Old China Restaurant and residential house being No.11/14-S/15-16, situated at Dhok Jumma, District Jehlam. We are not persuaded to agree with the contention of Mr. Chaudhry Muhammad Arshad, learned counsel for the appellant that since the property was situated at Quetta, therefore, the registration at Karachi was not proper. The contention of Mr. Imran-ul-Haq Khan, learned counsel for the respondents Nos.1 to 3 has substance that there is no bar for registration of a power of attorney outside the place where the property is situated. The appellant had authorized the respondent No.6 to act as his attorney in respect of the property mentioned therein and the judgments referred to by the learned counsel for the appellant are inapt. The case-law relied upon relate to registration of the sale deed, transfer deed of the property wherein it has been held that the sale deed can only be registered with the Registrar in whose jurisdiction the property is situated.
13. It was argued with vehemence by Mr. Imran-ul-Haq Khan, learned counsel for respondents Nos.
1 to 3 that it was not the case of appellant before the trial Court that registration of the general power of attorney was without jurisdiction. The learned counsel contended that the case as set up by the appellant before the trial Court was that he had executed power of attorney in respect of property known as Survey No.396/1-A and not property bearing No.396/1. It may be pertinent to point out here that in the written statement, it has been mentioned that after the death of the father of appellant and respondents Nos. 1 to 4, the matter was referred to sole arbitrator. As far as the arbitration award is concerned, the same has not been disputed, rather admitted by the appellant and inasmuch as, an application under section 20 of the Arbitration Act for making it a rule of the Court was filed by the appellant himself and on the basis of said application Arbitration Award was made rule of the Court. In the award, it is clearly mentioned that Mr. Javed Iqbal, shall be entitled to House No.75/52, situated at Toghi Road, Quetta and residential House 11/14-S--1617, situated at Dhok Jumma, District Jehlam and, further the Bungalow and Old China Restaurant has been assessed at Rs.35,00,000, out of which respondents Nos. 1 to 3 had to pay an amount of Rs.4,00,000 to the appellant. The award was accepted by the appellant and thereafter he, on the basis of the award received an amount of Rs.6,00,000 towards his share in the Bungalow and Old China Restaurant. The respondent No.3 in his statement has clarified the ambiguity regarding payment of Rs.6,00,000, paid to the appellant, which is as follows:--
14. The above portion of the statement has not been disputed by the appellant. Perusal of the documents would reveal that the draft was received by him in presence of witnesses vide cheque Exh.P/7 on 26-7-1986, and thereafter, power of attorney was executed by the appellant in favour of respondent No.6 on 27-7-1986 at Karachi. It would be appropriate to refer to para. 7 of the power of attorney, wherein respondent No.6 was authorized as follows:-- "7. To sell, transfer, relinquish, assign, gift my share in the above mentioned property or interest therein and to receive the price thereof and to grant receipt or effectual discharge of the same and to execute and sign and get registered all such deeds necessary to complete the transaction and to generally act as my attorney or agent in relation to the matters aforesaid and all other matters in which I may be interested or concerned and on my behalf to execute and do all deeds, acts or things as fully and effectually in all respect as myself do if personally present and I hereby for myself, my heirs, executors, administrators and legal representatives rectify and confirm and agree to ratify and confirm whatsoever my said attorney shall do or purport to do by virtue of this deed and I also hereby agree that this power of attorney shall be irrevocable. "
15. It is on the basis of power of attorney that disclaimer of the right coupled with Relinquishment Exh.P.1 was executed through respondent No.6 on behalf of the appellant on 13-8-1986. The contention of appellant that he had no knowledge about the deletion of his name as owner from bungalow is without substance. The power of attorney was executed by him and got registered in his presence. Besides, the appellant could not give any satisfactory explanation that as to how he received an amount of Rs.6,00,000 from the respondents.
Thus the contention of Mr. Chaudhry Muhammad Arshad that the Relinquishment Deed prepared subsequently on the basis of general power of attorney is not valid, is repelled. On the contrary the appellant has not come with clean hands and had concealed facts regarding arbitration agreement and receiving payment on the basis of the same.
16. The burden to prove that the power of attorney had been executed fraudulently and through misrepresentation was upon the appellant, but nothing has been brought on record to infer that the power of attorney was executed fraudulently, rather perusal of the same would show that it was duly registered with the Sub-Registrar, Karachi after receiving the amount as discussed above.
It is well-settled that sanctity has to be given to the registered documents, stronger evidence is required to cast aspersion on its genuineness. No such evidence was brought on record to conclude that it was registered fraudulently. Reference may be made to 1993 SCMR 462 (Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others) and PLD 2001 SC 158 (Haji Abdullah and 10 others v. Yahya Bakhtiar). Thus the learned trial Court has rightly refused the discretionary relief sought by the appellant.
16. Thus for the foregoing reasons, we see no merits in the appeal, therefore, the same is dismissed.
Since the parties are closely related to each other, therefore; they are left to bear their own costs.