' This civil revision assails judgments and decrees, dated 12-3-2002 and 9-3-2003 passed by learned Civil Judge and learned Additional District Judge, Faisalabad whereby suit of the respondent was decreed and appeal of the petitioners thereagainst was dismissed, respectively.
2. Precisely, relevant facts are that the respondent filed a suit for adjudgment of sale Mutation No,826, dated 27-2-1991, in form of declaration and permanent injunction, as consequential relief.
The respondent pleaded that mutation in question was illegally got sanctioned by her alleged attorney in favour of his own sons, without any consideration, her concurrence and without there being any bargain or transaction of sale, thus, the same is void, fictitious and ineffective qua her rights. She also prayed a permanent injunction restraining the petitioners from claiming their ownership on the basis of Mutation No,826, dated 2-7-1991 and from selling it to anybody else, by any means whatsoever. It was also averred in the plaint that the respondent was an old, ailing; illiterate and issueless widow and owned land measuring 22 Kanals and 15 Marlas, as detailed in her plaint. She was living' with the petitioners, out of whom, petitioner No,1 was her real ' brother and petitioners Nos.2 and 3 were her real nephews. Petitioner No,1 was cultivating land of the respondent and was paying lease money to her on which she was meeting both the ends of her life, but the petitioners in order to grab her property, got a fictitious mutation sanctioned, as noted above.
3. The petitioners being defendants in the suit, contested it by filing written statement wherein they raised a number of preliminary objections. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter after doing the needful vide his judgment and decree, dated 12-3-2002 decreed the suit of the respondent, adjudging Mutation No,826, dated 27-2-1991.
4. The petitioners aggrieved of the decision of the trial Court, dated 12-3-2002 filed an appeal before the learned Additional District Judge but remained unsuccessful as their appeal was dismissed vide judgment and decree, dated 9-3-2004. The petitioners thereafter, filed instant revision petition wherein the respondent, in response to notice by this Court have appeared through her counsel.
5. Learned counsel appearing on behalf of the petitioners submitted that the respondent did not narrate in the plaint the details of fraud alleged to have been committed with her and that she did not challenge power of attorney in favour of petitioner No,1 and in this situation, her suit could not have been decreed. He further contended that fraud has to be asserted with clarity and is to be proved as a fact as held by the Honourable Supreme Court in the case of Mst. Noor Jehan and 3 others v. Bostan 1976 SCMR 486. He further submitted that the respondent had denied execution of power of attorney and she was confronted with the original document, she denied her thumb- impressions thereover which necessitated filing of an application for comparison of her signatures/ thumb-impressions but this application was erroneously dismissed by the trial Court, in view of judgment by an Honourable Division Bench of this Court given in R.F.A. No,19 of 1996. He further submitted that suit for cancellation of mutation required ad valorem court-fee as held by this Court in the case of Rashid Ahmad v. Haq Nawaz and others 1982 CLC 9 but the respondent having paid no court-fee on her plaint and thus it was not properly presented, whereover no lawful proceedings could have been conducted. According to his submissions, suit by the respondent on the face of it, was barred by limitation.
6. Learned counsel appearing on behalf of the respondent refuted the arguments of the petitioners, supported concurrent judgments and decrees of the two Courts below and urged that the respondent while appearing as P.W.1 supported her version given in the plaint whereafter onus to prove a lawful sale in favour of petitioners. Nos.2 and 3 shifted on their shoulder but they miserably failed to prove bargain of the alleged sale, the transaction or payment of price, or transfer of possession thereunder. He further submitted that the petitioners did not prove due execution of the power of attorney in favour of respondent No,1 by producing marginal witnesses to it and mere examination of D.W.1 who is only a nephew of the scribe, does not prove due execution of power of attorney by the respondent. He further submitted that power of attorney Exh.D.1 was not shown to have been witnessed by any Lumbardar of the village and the respondent being an illiterate Paradah observing lady was protected under law. According to his submissions, the petitioners failed to prove through positive evidence, transaction in their favour, thus, suit of the respondent has rightly been decreed by the two Courts below.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, petitioner No,1 is real brother of the respondent whereas petitioners Nos:2 and 3 are her nephews 'and real sons of petitioner No,l. The respondent has not only denied appointment of petitioner No,1 as her general attorney, but has also refuted the transaction of sale, as claimed by the petitioners. Petitioners No,1 stood in active fiduciary relationship with the respondent and after denial of transaction by the respondent, was required to prove through positive evidence beyond any shadow of doubt, the bargain, transaction of sale and due execution of power of attorney as held by the Honourable Supreme Court in the cases of Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642, Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR' 1832 and Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi 1998 SCMR 1354 and a number of other judgments by this Court a few of those are Mst. Bakht Bano v. Mst. Zainab Khatoon 1991 MLD 2389, Niaz Ali and 16 others v. Muhammad Din through legal heirs and 13 others PLD 1993 Lah. 33 and Mst. Rasul Bibi v. Nasrullah Khan 1994 CLC 1774. The petitioners in order to discharge onus placed on their shoulder produced Muhammad Mushtaq D.W.1. Faqir Muhammad D.W.2, petitioner No,1 appeared as D. W.3 and Muhammad Yasin petitioner No,2 appeared as D.W.4. D.W.2 stated that petitioner No,1 is his paternal uncle whereas the respondent is her aunt. According to him, he worked in Kuwait and was informed by petitioner No,2, his brother- in-law that he needs an amount of Rs,1,50,000 which was dispatched by him through "Hundi". He further stated that he arrived Pakistan a day earlier to the registry and in his presence the petitioner No,1 gave money petitioner, No,2 who further paid it to the respondent Mst. Jannat Bibi. He further stated that this amount was paid to Mst. Jannat Bibi as price of the land. The petitioners have attempted to prove payment through this witness who has himself admitted that he is married to sister of petitioner No,2 and daughter of petitioner No,1. During cross-examination, he expressed his ignorance about the date of payment of the amount of sale or that of the mutation and also admitted that in his presence Khushi Muhammad petitioner No,1 did not make payment to the respondent Jannat Bibi. On this reply, learned counsel for the petitioners intervened on which this witness changed his stance and stated that payment was made in his presence. D.W.3. Is Khushi Muhammad, petitioner No,1 D.W.4 is Muhammad Yasin petitioner No,2 whereas the other witness D.W.1 is Muhammad Mushtaq who is a nephew of Muhammad Ali petition-writer and stated that power of attorney Exh.D.1 is in handwriting of his uncle Muhammad Ali, the petition-writer. This is the entire evidence produced by the petitioners to prove transaction of sale in their favour. None of the marginal witnesses of the power of attorney was produced. No witness of mutation sanctioned in their favour was brought in witness box. Similarly, no witness of bargain/transaction was examined and the only witness produced by them was D.W.2 who as noted above, is son-in- law of petitioner No,1 and brother-in-law of petitioners Nos.2 and 3.
8. Though lawful execution of power, of attorney in favour of petitioner No,1 is not proved and if it be assumed to have been executed and carrying a presumption of correctness attached to it under section 33 of the Registration Act under the provision of Power of Attorney Act and Qanun-e- Shahadat Order, 1984 even then, the respondent was required to prove that before transferring property of the respondent in favour of his own sons (petitioners Nos.2 and 3), he consulted the respondent and made payment of the sale proceeds to her but no such evidence is available on the file. Law regarding transfer by the attorney in favour of his own kith and kins, without consulting his principal, is settled and it will be presumed that the sale in favour of attorney himself, thus, remains void as repeatedly mandated by the Honourable Supreme Court in their alighted judgments in the cases of Fida Muhammad v. Muhammad Khan (deceased) through legal heirs and others PLD 1985 SC 341, Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811. The law laid down by the Honourable Supreme Court was followed by all the High Courts of this country in the cases of Syed Shafique Hussain v. Syed Abdul Qasim PLD 1979 Kar. 22 and Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shagufta Rafique 1994 CLC 1690. In view of these judgments, I have no hesitation to hold that transfer by petitioner No,1 in favour of his sons cannot be upheld, in absence of a clear evidence on the file that the respondent concurred to such transfer, in writing after receipt of sale proceeds.
9. Petitioner No,1 being in active fiduciary relationship with the respondent being her real brother was also required to prove good conscience of the transaction but the file is absolutely thirsty of its proof. The respondent was an old, ailing, illiterate and a villager lady and such women are protected under law and it is obligatory for the beneficiary C to show that she before parting with her immovable property, entered into bargain out of her own free-will and volition besides that she had an opportunity of consulting some independent person or she had some independent legal advice in this behalf. Taking this view I am fortified by a chain of judgments and a few out of those are Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 204, Sree Sree Gopal Jeo Bigraha and others v. Mst. Mahmuda Begum and others PLD 1968 Dhaka 265, Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890, Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642, Mst. Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661, Mst. Hassan Bibi v. Ghulam Siddique and others 1992 CLC 402 and Baggu v. Mst.
Rahman Bibi 1996 MLD 377.
10. For what has been discussed above, I am constrained to hold that both the Courts below have rightly, returned their findings in support of their judgments and decrees are absolutely in consonance with the evidence on the file which has neither been asserted nor is proved to have been misread and non-read. They have not committed any illegality or irregularity amenable to revisional jurisdiction of this Court. This revision petition having no substance in it and accordingly dismissed, with costs.