Through this petition the petitioners have challenged the concurrent judgments and decrees i.e. The judgment and decree of the learned trial Court dated 17-3-1995 vide which petitioners suit for declaration was dismissed, as also the judgment and decree dated 12-9-1995 vide which petitioners' appeal against the afore-referred, judgment met the same fate and the judgment and decree of the learned trial Court was affirmed.
2. Facts in brief are that petitioners filed a declaratory suit contending therein that suit property was owned by Inayat Ali husband of Nawab Bibi (one of the plaintiff/petitioner) who had died in 1957 that respondent Ghulam Hussain forged power of attorney in 1975 and transferred the entire land of said Inayat Ali through a sale --(9-2-1916) in favour of remaining respondents/defendants who are his sons and nephew. The suit was contested and it was contended that the general power of attorney and the sale-deeds were registered documents and reflected valid transactions.
3. In terms of the divergent pleas of the parties, the following issues were framed:-- (1)Whether the power of attorney in favour of defendant No. 1 by Inayat Ali deceased is a result of fraud and misrepresentation? OPP (2)Whether the sale-deed dated 19-2-1976 in favor of defendants Nos.2 to 5 is against facts and law and as such ineffective over the rights of the plaintiff? OPP (3)Whether the subsequent sale-deed dated 25-3-1979 in favour of defendant No.6 is also ineffective over the rights of the plaintiff? OPP (4)Whether the suit is not maintainable in its present form? OPP (5)Whether the suit is bad due to non-- joinder of necessary parties? OPD (6)Whether the plaintiffs are estopped to bring this suit on account of their word and conduct? OPD (7)Relief.
4. During the trial the petitioners/ plaintiffs produced P.W.1 Ibad Ali who stated that Nawab Bibi's husband Inayat Ali died about 25 years ago (statement of this witness was recorded on 14-2-1984).
In cross-examination he stated that he participated in the funeral of Inayat Ali and denied the suggestion that Inayat Ali had died in Vehari about five years ago and that he was making statement at the asking of Nawab Bibi.
5. P.W.2 is Khadim Hussain who stated that Nawab.Bibi used to get Batai share from her land situated in Village Kotli Gul Muhammad. He denied the suggestion that Inayat had sold his entire land in his life--time. P.W.3 Faqir Muhammad stated that Nawab Bibi remained in their village at Mouza Uddo Fatta in 1955-56 alongwith her husband and she had been getting her Batai share of land situated in Gujranwala till 5/6 years prior to filing of suit. In cross --examination he admitted that Ghulam Hussain respondent/ defendant had filed a suit for pre--emption against him.
6. P.W.4 is Mst. Nawab Bibi one of the petitioners/plaintiffs who stated that about 24/25 years ago she left Mouza Uddo Fatta and joined her brothers and her husband Inayat Ali died after six months Le, in 1957. She further stated that she used to get her Batai share from the land owned by Inayat Ali in Kotli Gul Muhammad, that Ghulam Hussain respondent/defendant who was Inayat's cousin and resided in Mouza Uddo Fatta got prepared a forged General Power of Attorney in Vehari and on the basis of the said Power of Attorney he got Inayat's entire land mutated in the names of his sons and nephew through registered sale-deed. In cross-examination, she stated that Allah Bakhsh used to cultivate the land of his husband and that she had taken last Batai share from him 3/4 years prior to the suit; that Ghulam Hussain took forcible possession of the land six months prior to the filing of the suit. She denied the suggestion that Ghulam Hussain was appointed General Attorney by her husband Inayat Ali and that later sold the suit property after receiving the sale money.
7. Respondents/defendams produced D. W.1 Muhammad Sharif son of Muhammad Din who stated that his father Muhammad Din and uncle had appointed respondent Ghulam Hussain as General Attorney, that Inayat Ali died at Vehari, that Muhammad Din his father died after 5/6 months and that there was no fraud. In cross-examination, he stated that Nawab Bibi was her aunt; that when the Power of Attorney was executed he was not at Vehari, that he was not consulted about that; that Ghulam Hussain the alleged attorney stayed with them for 4/5 days when the general Power of Attorney was executed; that when Inayat Ali died his children were at Vehari. He denied the suggestion that general power of attorney was forged.
8. D.W.2 Muhammad Sharif son of Rahim Bakhsh gave evidence to the effect that he had not seen Inayat Ali in Mouza Kotli Gul Muhammad in cross-examination, he could not name the new Chaukidar of the Kotli Gul Muhammad and denied the suggestion that Inayat Ali had died before the said witness came to Kotli Gul Muhammad.
9. D.W.3 is Muhammad Saleh who stated that the suit-land was being cultivated by Allah Bakhsh and that he did not give Batai share to the owners and that presently the land was in possession of Ghulam Hussain.
10. D.W.4 is Ghulam Hussain one of the respondent/defendant himself who stated that General Power of Attorney was executed in his favour by Inayat Ali and Muhammad Din; that Inayat Ali died four and a half years prior to the filing of the suit at Vehari. In cross-examination, he denied the suggestion that power of attorney was forged. He admitted that afore-referred Muhammad Din was his brother-in-law. However, he failed to point out as to how many children Inayat Ali deceased left. He refuted the suggestion that Inayat Ali had already died when the power of attorney was executed and that he had got prepared the general power of attorney in collusion with Muhammad Din. He admitted that except 5/6 acres, the remaining suit property is in possession of the petitioners/plaintiffs.
11. The material documentary evidence produced by the parties which could be of relevance is Exh.P.3 which is a copy of the Death Register indicating that Inayat Ali died on 19-12-1957, whereas, Exh.D.1 is the copy of Death Register reflecting that Inayat Ali died on 2-5-1978.
12. The learned counsel for the petitioners in support of the petition has submitted that concurrent judgments and decrees suffer from misreading and non-reading of material evidence on record, inasmuch as, both the learned Courts below failed to appreciate that Exh.D.1 (copy of the Death Register) indicating that Inayat Ali died on 2-5-1978 was not worth consideration, as the document itself showed that afore-referred entry was made on 31-7--1981 i.e. After filing of the suit as petitioners/plaintiffs filed the civil suit on 9--4-1979. This according to him was clearly an attempt to create a defence in the instant suit; that both the Courts below failed to appreciate that beneficiary of the power of attorney dated 2-4-1975 (Exh.P.5) and that of the registered sale-deed dated 29-3---1979 (Exh.P.2) were the respondent/ plaintiff Ghulam Hussain the alleged attorney and his sons and nephew. It is a settled law that attorney cannot transfer interest of the property of the Principal in his own name or in the name of his blood relations without express authority of the Principal and that the respondent/defendant failed to prove that general power of attorney was executed bona fidely as none of the marginal witness was produced nor any scribe was produced by the respondent/defendant.
13. The learned counsel for the respondent/defendant on the other hand, defended the impugned judgments by submitting that concurrent judgments and decrees do not reflect any misreading or non-- reading of evidence which could warrant interference in revisional jurisdiction of this Court.
He added that main stress of petitioners/plaintiffs during the trial was that Inayat Ali had died much prior to the execution of the general power of attorney. The onus was on the petitioners/plaintiffs which he miserably failed to discharge; that the learned trial Court after requisite enquiry extended credence to Exh.D.1 and did not believe Exh.P.3 for valid reasons. He added that the ground that attorney could not alienate the property in favour of his sons and nephew was not taken in the plaint and petitioner cannot be permitted to go beyond the pleas.
14. Heard.
15. The crucial issues in the instant case are Issues Nos. 1, 2 and 3. The learned trial Court has decided Issue No. 1 against the petitioner/plaintiff by disbelieving Exh.P.3. Referring to the statements of P.W.1 and P.W.4 with regard to date of migration of Inayat Ali husband of petitioner/plaintiff Nawab Bibi to Kotli Gul Muhammad, the learned trial Court held that if these witnesses are believed then the date of death of Inayat Ali could not be 19-12-1957 as given in Exh.P.3. The operative part is as under:-- "According to P.W.4 Inayat Ali remained ill about one or half and one year at Mouza Uddo Fatta, P.W.4 stated in his cross-examination that they went to Kotli Gul Muhammad about 5/6 years after the Pakistan came into being. If the period of migration deducted, keeping in view the above figures the date of-migration to Kotli Gul Muhammad becomes either 1952 or 1953. P. W.1 and P. W.4 have unanimously stated that Inayat Ali died after six months he reached to Kotli Gul Muhammad.
If this period of six months is added to the above-said dates then the death year of Inayat Ali becomes either 1953 or 1954 but according to Exh. P.3 Inayat Ali died on 19-12-1957. Apparently there is a gap of four years not explainable by the record present on file. Nawab Bibi does not know the year of her family's migration to Kotli Gul Muhammad, moreover, she was unable to tell the year when she deposed her statement. The statement of P.W.1 and P.W.4 does not endorse the entries of Exh. P.3. "
16. The afore-referred observation of the learned trial Court that P.W.1 and P.W.4 unanimously stated that Inayat Ali died after six months of his shifting to Kotli Gul Muhammad, is not borne out from the record. It was only P.W.1 who stated so. This finding therefore, is reflective of misreading of evidence. Even otherwise the witnesses were deposing about something which happened 25 years prior to the day when they were making the statements. Nobody is expected to be very exact about the date and time, particularly of events which are not directly in issue. The learned Court could not have disbelieved Exh.P.3 which is the copy of Death Register issued by District Health Officer, Gujranwala, on account of a slip of memory of these witnesses. Exh.P.3 reflects that the information with regard to death of Inayat was given to the concerned office without delay i.e. On 23-12-1957.
Nothing tenable was brought in evidence to rebut the evidentiary value of this document to which a presumption of truth is attracted in terms of Article 90 of the Qanun-e-Shahadat Order, 1984, which reads as under:-- ---90. Presumption as to genuineness to certified copies.---(1) The Court shall presume every document purporting tobe a certificate, certified copy or otherdocument, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Federal Government or a Provincial Government to be geniuses: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document."
16. As against Exh.P.3, the document produced in rebuttal was Exh.D.1 which on the face of it was dubious as admittedly the information with regard to the death of Inayat Ali as per this document was given to the office on 31-7-1981 which is almost two years after the filing of the instant suit and on the direction of Chairman, Municipal Committee, Vehari. The column relating to the name of the informant is blank. All these circumstances adversely reflect on the authenticity of this document.
The preponderance of evidence leans in favour of Exh.P.3, which shows that Inayat had died on 19- 12-1957 and the alleged power of attorney Exh.P.5, dated 2-4-1975 could not have been executed by him as he had already died. In the face of the oral and documentary evidence a heavy onus lay on the respondent/defendant to prove the bona fides of Exh.P.5 i.e. General power of attorney but surprisingly neither any marginal witness of the said general power of attorney nor its scribe was produced in evidence and no reason whatsoever was given either. The findings on Issue No. 1 rendered by both the Courts below for the afore-referred reasons cannot be sustained.
17. Coming to Issues Nos.2 and 3, it is in evidence that petitioner/plaintiff had been receiving Batai share of the land left by Inayat situated in Koth Gul Muhammad till 6 months prior to the filing of the suit. If the land had been sold in 1976 and 1979 as claimed by respondents she would not have received the Batai share as late as six months prior to the suit.
18. Admittedly, the respondent/ defendant as general attorney had mutated the suit property in favour of his sons and nephew through registered sale-deed. Even if the general power of attorney is considered in the instant case to be a genuine document, a heavy responsibility lay on the attorney to ensure bona fides of the sale-deed that he wanted to execute in his capacity as an Attorney. If he intended to mutate the land in favour of his sons and nephew, the law mandates that an express authority from the Principal is a condition precedent. This is in line with the law laid down by the august Supreme Court in "Fida Muhammad v. Muhammad Khan" PLD 1985 SC 341, wherein, at page 345 it was observed as under- "Firstly in cases of difficulty (and it will be a case of difficulty if the power of attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions; and secondly, if the agent deals on his own account with the property under agency, e.g. If he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the Principal is at liberty to repudiate the transaction. "
The afore-referred ratio was reiterated in "Wali Muhammad v. Muhammad Ibrahim and another"
PLD 1989 Lah. 440 and "Malik Riaz Ahmad and others v. Mian Inayat Ullah and others" 1992 SCMR 1488.
19. Respectfully following the afore --referred precedent case-law, I am of the view that the findings of the Courts below on Issues Nos.2 and 3 cannot be sustained.
20. In view of the foregoing analysis of evidence and the law declared, the concurrent judgments and decrees not only reflect misreading and non-reading of material evidence on record but also are violative of the law declared. This petition is therefore, allowed both the impugned judgments and decrees are set aside and petitioners/plaintiffs' suit is decreed with costs.