MIAN SAQIB NISAR, J.---R.F.As. Nos. 96 of 1994 and 698 of 2001, are being decided together, as both involve common questions of law and facts.
2. Briefly stated the facts of the case are, that the Plot No. 17-X-7, situated in Madina Town Scheme, Faisalabad, measuring 5 Marlas, was allotted by the F.D.A. To respondent No. 1 on 4-3-1978. It is the case of the appellant, that respondent No. 1, vide registered power of attorney, dated 30-11-1978 (Exh. P.6) appointed Khurshid Anwar, respondent No.2, as his attorney with the power to sell the said plot; the attorney sold the plot in favour of the appellant for a consideration of Rs.55,000 and also delivered the possession thereof. The appellant accordingly applied to the F.D.A. For the transfer of the plot; however, while the matter was yet pending, when respondent No. 1, vide revocation deed, dated 4-11-1987 cancelled the power of attorney in favour of respondent No.2. In these circumstances, the appellant, was constrained to file a suit on 22-12-1990, seeking declaration to the effect that he is the owner in possession of the suit plot, and also sought a direction that the FDA should transfer the said plot in his favour. It may be pertinent to state here that as per the appellant---s case during his period he also raised construction over the plot.
3. On 14-2-1992, respondent No. 1 also brought a suit for possession against the appellant, claiming to be the owner of the suit property. Both the suits were consolidated, vide order, dated 17-9-1992, and the following consolidated issues were framed:--- (1)Whether the instant suit is not maintainable in its present form? OPD (2)Whether the instant suit is barred by time? OPD (3)Whether the plaintiff has no cause of action? OPD (4)Whether the instant suit is incorrectly valued for the purpose of court-fee, if so, to what extent?
OPD (5)Whether the defendants are entitled to special costs? OPD (6)Whether the plaintiff is entitle to a decree for declaration as prayed for:? OPP (7)Whether the suit of Doctor Munawar Hussain No.55-1 of 1992, cannot proceed in view of objection No .1 of written statement? OPP (8)Whether the Suit No. 55-1 of 1992 is not properly valued for the purpose of court-fee? OPP (9)Whether the plaintiff has no cause of action? OPP (Suit No. 55-1 of 1992).
(10)Whether the plaintiff is entitled to special costs under section 35-A, C.P.C. In suit of Dr. Manawar Hussain No.55-1 of 1992? OPP (11)Whether Dr. Manawar Hussain, plaintiff is entitled for possession of disputed property as prayed for? OP defendant No. 1.
(12)Relief.
4. The parties were put to trial. The appellant examined P. W.1 Muhammad Ali Shad, Senior Clerk from Estate Management Branch,. F.D.A., who proved on record the documents Exh. P.1 to P.5; Exh. P.1, is the sale agreement, executed by the F.D.A. In favour of respondent No.1, whereas Exh. P.2, is the application submitted by Khurshid Anwar, the attorney of the respondent No. 1, to the F.D. A., for the transfer of the plot in favour of the appellant. Exhs. P.3, P.4 and P.5, are the applications containing the specimen signatures of the attorney and the appellant. P. W.2 Muhammad Saeed, is the Assistant Director, Admn. Branch, F.D.A., who has proved the power of attorney Exh. P.6 in favour of Khurshid Anwar, executed by the respondent No. 1. P. W.3 is Khurshid Anwar, the attorney, who has deposed that he had purchased the plot from the respondent No. 1, who executed an irrevocable power of attorney in his favour on 30-11-1978, and on the basis of the power of attorney, he had sold the suit plot to the appellant. P. W.4 is Ghulam Hussain, who has stated that Khurshid Anwar, was the attorney of the respondent No.1, and he had sold the property in favour of the appellant. The appellant himself appeared as P.W.5 and has supported the contents of his plaint. Besides, the appellant also proved documents Exh. P.6 (erroneously double marked as Exh. P.6), the receipt showing the deposit of certain water charges etc. By the appellant; Exh. P.7 is the letter of F.D.A.
Establishing the approval of the construction plan. Conversely, the respondents examined Muhammad Ali Shad as D.W.1, who is the Senior Clerk, E.M. Branch, F.D.A., and has deposed that the power of attorney given by the respondent No.1 in favour of Khurshid Anwar was cancelled on 4-11- 1978. D.W.3, is Mian Manzoor-ul-Haq, Assistant Director, F.D.A., who testified that as per the record of F.D. A., the respondent No. 1, is the owner of the suit plot and that the plot has not so far been transferred in favour of the appellant. Respondent No. 1 appeared as D. W.2 and has stated that he never sold the plot to Khurshid Anwar or gave him the power of attorney for the purposes of the sale of the plot, rather he was not conversant with the procedure for the allotment, and therefore, appointed Khurshid Anwar as his attorney, to have the allotment of the plot in his favour; subsequently, through a newspaper notice, it came to his knowledge that Khurshid Anwar, has sold the property in favour of the appellant, and the F.D.A. Notified the above fact, resultantly, he revoked the power of attorney; he produced in evidence a site plan Exh. D.1, which according to him, he got prepared for the purposes of raising construction over the suit plot. Learned Court below after the trial, came to the conclusion that in his statement Khurshid Anwar, has claimed that he had purchased the plot from the respondent No. 1 through an agreement, such agreement of sale has not been placed or proved on record. This according to the trial Court, is a conspicuous defect in the case of the appellant.
5. We have heard the learned counsel for the parties. Respondent No. 1, has admitted that he did appoint Khurshid Anwar as his attorney, through the registered power of attorney, dated 30-11-1978 (Exh. P.6). It A is his case, that the said attorney was cancelled by him on 4-11-1987. It is further the case of the respondent No.1, that the attorney was not given any authority to sell the property, rather it was only with an object to seek the allotment in favour of the appellant. We have perused the power of attorney, in which it is. Expressly mentioned, that the attorney shall have the authority to sell the plot. The revocation deed is dated 4-11-1987, but prior to that date Khurshid Anwar, attorney of the respondent No. 1, had transferred the plot in favour of the appellant, through an application Exh. P. 2, dated 16-8-1987. According to the sale agreement by the F.D.A. In favour of the respondent No. 1, there is no clog for the transfer of the plot to any third party by the allottee. The sale-deed in favour of the respondent No. 1 by the F.D.A. Was not yet executed, thus, the transfer in favour of the appellant by the allottee or his attorney could be made through an application to the F.D.A., as per its policy. This is exactly what has happened in the present case. The attorney of the respondent No. 1, before the revocation of his authority, for a due consideration of an amount of Rs.
55,000, had transferred the plot to the appellant, and in this regard, necessary application was also moved to the F. D. A.; the F. D. A. Commenced its proceedings for the transfer and had notified through publication in the newspaper, but because the respondent No.1 intervened and revoked the power of attorney, therefore, no further steps could be taken. In the aforesaid circumstances, as the respondent No.1, acted for the cancellation of the power of attorney, after the application was moved to the F.D.A., by his then duly appointed attorney, therefore, such revocation would not affect the rights of the appellant. From Exh. P.6 and Exh. P.7, it is also established that the appellant, had raised the construction over the plot, as he had paid the water and sanitation charges; got a site plan approved from the F. D. A. (Exh. P.7). Conversely, the respondent No. 1, has not been able to show, if he ever remained in possession of the suit property, and had made any construction over the said plot. The plea of the respondent No.1, that the appellant illegally took over the possession, is not proved by him, because no substantial evidence has been led by the respondent.
6. From the totality of the evidence on record, we are of the firm view, that the respondent No.1, had appointed Khurshid Anwar as his attorney, who for due consideration, sold the plot to the appellant, the attorney also applied to the F.D.A. For the completion of the transfer of the plot in favour of the appellant; after procuring the sanction of site plan, the appellant raised construction over the suit property and also got the water connection etc. In his name. Therefore, for all intents and purposes the appellant, had become the owner of the property, the moment this property was sold by the attorney of the respondent No.1, on the basis of a power of attorney, which contains a clause empowering him to sell the property, and such sale had been completed before the revocation of his authority on 4-11-1987.
7. The learned Court below, ha,; dismissed the suit of the appellant, on the only ground that Khurshid Anwar while appearing as a witness (P.W.3), claimed that: he had purchased the property from the; respondent No.1, but has not been able to produce his agreement to sell, suffice it to say, that notwithstanding the factum of agreement of sale in favour of Khurshid Anwar, he as the attorney simply on the basis of his power of attorney, could competently I sale the property to any respondent and this is how the appellant, has validly purchased the plot.
8. In the light of above, we do not find; that the learned Court below, has given correct finding on Issue No.6, which is the key issue between the parties, resultantly, by reversing the finding on such issue and all other material issues, which were found in favour of the respondent No. 1 and against the appellant, the judgments and decrees of the' Court below, are set aside with the result that the suit of the appellant for declaration, is decreed in his favour as prayed for, whereas the suit of the respondent for possession, is dismissed. Accordingly, these appeals are allowed.