Brief facts out of which present revision arises are that the petitioner/plaintiff filed a suit for the grant of a decree for declaration and permanent injunction before Senior Civil Judge, Narowal on 22.9.1975. The contents of the plaint reveal that the petitioner/plaintiff is exclusively owner in possession of the property in-question measuring 201 kanal and 8 marlas situated in Manak, Narowal and alleged sale-deed dated 10.2.1975 of the suit land was executed between one Bashir Ahmad son of Faqir Muhammad, Caste Jat, resident of Parenkey, Tehsil Daska, District Sialkot and the respondents. Respondent-Defendant No, 1 was general attorney of the petitioner/plaintiff and other respondents-defendants or' their predecessor, which is the result of fraud, forgery, void abi- initio and in-effective upon the rights -of the petitioner-plaintiff. The respondents-defendants filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties, the learned trial Court framed the following issues:-- Issues:
1. Whether the suit is not maintainable in the present form? OPD
2. Whether valuation of the suit is incorrect for the purposes of the Court fee and jurisdiction ? OPD
3. Whether the sale in dispute is based on fraud and in-effective on the rights of the plaintiff? OPD 3-A Whether the power of attorney dated 3.2.1975 is the result of fraud and as such has no legal effect? OPD 3-B Whether the Defendants Nos, 2 to 9 are bona fide purchasers for value? If so, with what effect?
OPP
4. Relief.
The learned trial Court decreed the suit vide judgment and decree dated 30.10.1994. The respondents being aggrieved filed an appeal before the learned Addl. District Judge, Sialkot, who accepted the same vide judgment and decree dated 19.10.1998, hence the present revision petition.
2. The learned counsel of the petitioner submits that judgments of both the Courts below are at variance. He further submits that First Appellate Court did not advert to the reasoning of the learned trial Court. He further submits that the petitioner had not executed any power of attorney in favour of Bashir Ahmad son of Faqir Muhammad. He further submits that Bashir Ahmed had not filed any written statement in the suit and did not enter appearance before the Court. He further submits that the original power of attorney was not produced by the respondents before the Courts below. He further submits that the attesting witnesses of power of attorney were also not produced before the learned trial Court. He further submits that the petitioner belonged to Sialkot and power of attorney allegedly executed at Lahore with wrong name of the petitioner and also discrepancies were noted at the time of hearing of revision petition before the then Abdul Majeed Tiwana, J. and the suo-moto Writ Petition No, 2197-94 was also entertained in respect of discrepancies mentioned above qua execution of general power of attorney in order dated 4.10.1994 in C.R. No, 625-D-87. He further submits that the respondents failed to bring on record any evidence to show that consideration of land in-question had been paid to the petitioner. He further submits that the respondents failed to prove the agreement to sell allegedly arrived at between the petitioner and the respondents. He further submits that the petitioner lodged a criminal case against the respondents. He further submits that the judgment of the First Appellate Court is the result of mis-reading and non-reading of the record.
3. The 'learned counsel of the respondents submits that the petitioner had lodged a case against the respondents simply to harass the respondents-defendants to usurp the land in-question with mala fide intention. He further submits that Bashir Ahmad son of Faqir Muhammad, having general power of attorney of the petitioner, did not enter appearance in the Court under the influence of the petitioner. He further submits that the judgment of First Appellate Court is valid as the First Appellate Court has accepted the appeal of the respondents after proper appreciation of evidence. He further submits that the petitioner-plaintiff admitted that Bashir Ahmad has managed the property in-question through his brother-in-law Majeeb-ur-Rehman, therefore, he impliedly accepted the execution of general power of attorney. He further submits that the First Appellate Court appreciated the evidence on record and found that the petitioner got a _ criminal case registered against the respondents and did not perused the same and criminal case was discharged, therefore, the revision petition is liable to be dismissed. He further submits that this Court has no jurisdiction to disturb the findings of the First Appellate Court while exercising power under Section 115 of CPC.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. The respondents are beneficiaries of the general power of attorney on the basis of, which the land in-question was sold by the general attorney of the petitioner to the respondents, therefore, it is the duty and obligation of the respondents to prove the execution of the general power of attorney as onus is automatically shifted upon the respondents-defendants in view of mandatory provision of Qanoon-e-Shahadat Order, 1984 in the circumstances, when the petitioner has denied the execution of the general power of attorney and respondents failed to produce general attorney of Bashir Ahmad and also failed to produce its original copy, coupled with the facts that the respondents also failed to prove the document by producing the secondary evidence, meaning thereby withheld the best evidence, therefore, the judgment of First Appellate Court is not sustainable in the eye of law. I am fortified by law laid down by the Superior Court in the following Judgments:-- "Pakistan American Fertilizer Ltd. vs. Amir Abdullah Khan, etc." (1984 C.L.C. 2170).
"A. Baghavamma and another vs. A. Chenchamma and anothers." (AIR 1964 S.C. 136). It is admitted fact on record that the petitioner-respondents claimed the execution of sale-deed through the aforesaid Bashir Ahmad, therefore, it is the duty and obligation of respondents to prove the execution of the contents of general power of attorney by producing two witnesses in view of Article 17 read with Article 79 of Qanoon-e-Shahadat Order, 1984. In arriving to this conclusion, I am fortified by the law laid down by D.B. of this Court and by the Honourable Supreme Court in the following judgments:-- "Salman Ali vs. Ch. Maqbool." (PLJ 2000 Lahore 1723). "Ch. Maqbool Ahmad, etc. Vs. Salman Ali, etc." (PLD 2003 S.C. 31). It is admitted fact as mentioned above that the respondents are beneficiaries of the general power attorney, therefore, it is the duty and obligation of the respondents to prove the contents of general power of attorney, but the respondents failed to prove the execution of general power of attorney. It is also settled principle of law that when the basic document is without lawful authority, then super structure shall have to fall on the ground automatically. In arriving on this conclusion, I am fortified by the law laid down in "Abdul Aziz's case." PLD 1958 S.C. (Pak.)
104. It is the duty an obligation of the respondents-defendants to prove on record that the respondents have paid consideration to the petitioner, but the respondent failed to prove on record that consideration had been paid/passed to the petitioner, therefore, the First Appellate Court was erred in law to decide the case against the petitioner and in violation of law laid down by the Hon'ble Supreme Court in "Muhammad Shafi vs. Allah Dad" (PLD 1986 S.C. 519 The First Appellate Court decided the case without applying its independent mind and without proper appreciation of evidence. This Court has amp jurisdiction to take judicial notice of the order passed in the aforesaid Civil Revision Petition No, 625-D-87 on 4.10.1994, wherein the discrepancies we noted qua general power of attorney, therefore, judgment of First Appellant Court is not sustainable in the eye of law in view of order dated 4.10.19 passed by this Court in C.R. No, 625-D-87. The learned counsel of t respondents failed to meet the discrepancies pointed out by this Court in t aforesaid order dated 4.10.1994. The judgment of First Appellate Court is violation of law laid down by the Superior Courts as mentioned above. T concept of jurisdiction and illegality had been considered by the Honoura Supreme Court in "Knawal Naim's case" (PLD 1983 S.C. 53) to cover t cases where the decision on facts is based on no evidence or in-admission evidence or is so perverse with grave injustice would result therefrom therefore, the First Appellate Court has committed material irregularity a this Court has ample jurisdiction to disturb the findings of facts in s situation, as per principle laid down by the Honourable Supreme Court "Shaukat Nawaz's case" (1988 S.C.M.R. 851). It is pertinent to mention he that in view of peculiar circumstances of this case, the principle of bona purchaser in view of Section 41 of the Transfer of Property Act, is attracted in the present case as the respondents failed to bring on record mentioned above original copy of the general power of attorney executed the petitioner in favour of Bashir Ahmad son of Faqir Muhammad as well they failed to prove oral sale executed between the parties.
In view of what has been discussed above, this appeal is accepted with no order as to costs.
Resultantly the judgment of the First Appellate Court is set-aside and Judgment of learned trial Court is up-held and the suit of the appellant-plaintiff is decreed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.