IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD
CIVIL RIVISION NO.102 OF 2012
Applicants : Choudhry Manzoor Ahmed & another
through Mr. Sundar Das Advocate.
Respondent No.1 : Faisal Manzoor through Mr. Zahid Khan Bangash, Advocate.
The State, Government of Sindh & others
through Mr. Ashfaq Nabi Qazi, Asstt. A.G.
Date of hearing: 16 February 2015.
Date of order : 30th March 2015.
SALAHUDDIN PANHWAR, J:- Through instant Civil Revision, applicants have assailed the judgment and decree dated 20.02.2012 passed by learned 1st Additional District Judge, Badin whereby the appeal of the respondent No.1/plaintiff being C.A.No.57 of 2011 “Re-Faisal Manzoor V. Ch. Manzoor Ahmed & others was allowed which, the respondent No.1/plaintiff had preferred against the judgment and decree dated 25.03.2011 through which the FC Suit No.37 of 2008 was dismissed by learned Senior Civil Judge, Badin.
2. Succinctly, facts are that respondent No.1/plaintiff filed a suit for Declaration, Cancellation, Possession, Mesne Profits, Permanent and Mandatory injunction, wherein it was claimed that agricultural land bearing Block Nos.10/1 to 4; 11/1 to 4; 31/1 to 4; 32/1 to 4; 33/1 to 4; 34/1 to 4 and 62/1 to 4 area 102-36 acres, situated in Deh Lao Tapa Luari Sharif Taluka & District Badin was owned by Mst. Sultana wife of Manzoor Ahmed (applicant No.1’s first wife) and mother of the respondent No.1/plaintiff; after her death the respondent No.1/plaintiff and applicant No.1/ defendant No.6 Choudhry Manzoor Ahmed inherited 84 and 16 paisa share respectively as per their entitlement. The respondent No.1/plaintiff resides at Rawalpindi whereas his father the applicant No.1/defendant No.6 was residing at the land as such he (plaintiff) executed registered general power of attorney, bearing No.704/4 dated 08.4.1996 in favour of applicant No.1/defendant No.6, however, after few months he (plaintiff) came to know that applicant No.1/defendant No.6 was intending to transfer the land to an other party so he (plaintiff), having lost confidence, cancelled the general power of attorney vide cancellation deed No.254/4 dated 16.02.1997. It was claimed that at such time applicant No.1/ defendant No.6 was present, copy of cancellation deed was provided to him with demand to hand over possession of the land. In response whereof, the applicant No.1/ defendant No.6 kept plaintiff on false hopes and by taking advantage of absence of plaintiff he (defendant No.6) transferred the suit land in the name of Mst. Kulsoom, the applicant No.2/defendant No.7 (second wife of the defendant No.6) vide registered sale deed No.380 dated 07.3.1997 for consideration of Rs.180,000/- on the basis of power of attorney dated 08.4.1996. The suit land was mutated in favour of applicant No.2/defendant No.7 vide entry No.5 dated 22.3.1997. The plaintiff/respondent No.1 came to Badin and learnt that suit land was sold; he approached to the defendant No.3/Respondent No.4 by filing appeal but through order dated 02.2.2008, appeal was dismissed and applicant was directed to seek remedy from competent court of law.
3. With reference to above pleaded facts, the plaintiff/ respondent No.1 sought the following relief (s):-
a. Declaration that the plaintiff is lawful owner of the suit land viz. 84 paisa share admeasuring 86-17 acres of Deh Lao, Tappa Luari Sharif, Taluka and District Badin (detailed in Para No.3 of the plaintiff) and the sale deed No.380 dated 7.3.1997 as mentioned in the column No.6 of entry No.51 of Village form VII B is illegal, void, ab-initio, without lawful authority, result of fraud and not binding upon the plaintiff and the suit land and is liable to be set aside;
b. Declaration that entry No.51 of village Form VII-B made on the basis of Sale-deed is also illegal, void, creating no right, title or interest whatsoever in favour of defendant No.7 and the same is liable to be recalled;
c. To pass a decree of possession in favour of the plaintiff against the defendant No.6 and 7 and eject them from the possession of land bearing Block Nos.10/1 to 4 (15-24), 11/1 to 4(12-27), 31/1 to 4(13-16), 32/1 to 4(15-30), 33/1 to 4 (15-24), 34/1 to 4 (13-35) and 62/1 to 4 (16.00) total admeasuring 102-36 acres situated in Deh Lao, Tapo Luari Sharif, Taluka Badin;
d. To pass Decree of Mesne Profits of the suit land at the rate of Rs.800,000-00 per year from 16.2.1997 till the defendants No.6 and 7 are ejected and plaintiff put in physical possession of the suit land;
e. To grant Mandatory injunction against the defendants Nos.3 and 4 to cancel entry No.51 dated 22.3.1997 and restore entry No.23 dated 26.2.1995 in the name of plaintiff and the defendant No.5 to cancel the registered sale deed referred to above;
f. To grant permanent injunction against the official defendants restraining them from making any change in the record of rights with respect of the suit land and the defendant No.7 be further restrained from alienating, gifting, leasing, transferring, selling, mortgaging or creating any other charge over the suit land directly or indirectly;
g. That the costs of the suit be borne by the defendants;
h. Any other relief which this Honourable Court deems fit and proper be awarded to the plaintiff.
4. In response to notices the applicant No.2/defendant No.7 filed written statement whereby admitting claim to the extent of execution of power of attorney empowering the defendant No.6/applicant No.1 to sell, mortgage, gift, exchange the suit land. She denied cancellation of general power of attorney and handing over the copy to defendant No.6/applicant No.1 and she alleged the cancellation deed to be forged, fabricated and concocted document. She claimed to have purchased the land through a legal document for valuable consideration paid to the plaintiff/respondent No.1 through applicant No.1/defendant No.6. It was also claimed that the property (whole land) was infact property of the applicant No.1/defendant No.6 and title in the name of mother of the plaintiff/respondent No.1 was Binami. It was further asserted in the written statement that sale in her favour was with consent of plaintiff/respondent No.1 and never objected the same for about 10 years but started questioning at instigation of rivals in family. The possession was claimed to be bonafide and lawful with defendant No.7/applicant No.2.
5. The defendant No.6/applicant No.1 adopted the written statement, so filed by the applicant No.2/defendant No.7. The official defendants/respondents, however, remained absent, hence, were declared ex-parte.
6. Out of the pleadings of the respective parties, the following Issues were framed:-
1. Whether the plaintiff authorized defendant No.6 to sell the suit land vide power of attorney No.704/4 dated 08.4.1996? If yes, whether the sale of the suit land by defendant No.6 to defendant No.7 on the basis of such power of attorney is legal, valid, with prior permission of the plaintiff?
2. Whether the plaintiff cancelled the Power of Attorney No.704/4 dated 08.4.1996 by a written ABTAL-NAMA’ No.1889/4 dated 16.2.1997 duly registered at the office of Sub-Registrar (Rural) Rawalpindi and was served upon the defendant No.6 personally?
3. Whether the defend ant No.7 is bonafide and lawful owner of the suit land on the basis of registered sale-deed S.No.380 and registration No.344 dated 07.3.1997?
4. Whether after cancellation of Power of Attorney, defendant No.6 is in illegal occupation of the suit land and misappropriates the produce?
5. Whether the sale deed No.344 dated 07.3.1997 in favour of defendant No.6 is illegal, void ab-initio, fraudulent, without lawful authority, collusive in order to usurp the suit land and is liable to be cancelled?
6. Whether entry No.51 of village form VII-B in favour of defendant No.7 of Deh Lao, Tappo Luari Sharif, on the basis of sale deed No.344 is illegal, malafide, fraudulent, creating no right or title in favour of defendant No.7 and the same is liable to be set aside?
7. Whether the defendant No.6 in spite of handing over cancellation deed of power of attorney by plaintiff sold suit land, share of plaintiff to defendant No.7 vide Sale deed dated 07.3.1997?
8. Whether the sale of suit land by defendant No.6 in favour of defendant No.7 is illegal, void, without lawful authority and not binding on plaintiff and is liable to be cancelled and set aside?
9. Whether the plaintiff under the registered Power of Attorney dated 08.4.1996 has not authorized defendant No.6 to sell or mortgage the suit land? If so, what is its effect?
10. Whether the order and observation in it made by defendant No.3 are illegal, perverse and liable to be rejected/set aside?
11. Whether the plaintiff has no cause f action for filing the suit?
12. Whether the suit is time barred?
13. Whether the plaintiff is not entitled to any relief as prayed by him?
14. Whether the Plaintiff is entitled for mesne profits @ Rs.8,00,000/- per annum w.e. from 16.02.1997 and onwards, if so, its effect/
15 What should the decree be?
7. To substantiate the pleadings, plaintiff/respondent No.1 examined PW-1 Lutuf Rehman, District Registrar Badin Ex.28, who produced certified copy of sale deed No.380 dated 7.3.1997 and registered No.344 Book No.1 dated 07.3.1997 (MF Roll No.259 dated 08.3.1997); PW-2 Mohammad Ishaque Memon, Assistant to DDO (Rev) Badin, who produced summons, report dated 16.11.2007 issued by Mukhtiarkar (Rev), Badin, vide No.1234, Order No. DDO(R)/5 of 2008 dated 2.2.2008 passed by DDO Revenue Badin, letter No.204 of 2007 dated 27.11.2007 addressed to Sub-Registrar, Rawalpindi alongwith verification issued by the Sub-Registrar, Rawalpindi (R); PW-3 Mohammad Moosa, Tapedar, Tapo Luari Sharif, who produced the record mentioned in the summons, entry No.51 dated 22.3.1997 , entry No.23 and 71 respectively; PW-4 plaintiff Faisal Manzoor examined himself and produced certified true copies of entry No.23 dated 26.2.1995, entry No.51 dated 22.3.1997, Power of Attorney, certified copy of General Power of Attorney and order of DDO and registered sale deed; PW-5 Ali Mohammad, Retired Government Servant; PW-6 Hafiz Shabbir, Government Servant; PW-7 Mohammad Shafique, record keeper Sub-Registrar (Rural), Rawalpindi, who produced notice of the court with endorsement of authority and attested Abtal-nama and attested copy of General Power of Attorney in the name of Manzoor Ahmed. Thereafter, side of the plaintiff was closed.
8. On their turn, the applicant No.1/defendant No.6 examined himself, who produced registered sale deed in the name of defendant No.7, special power of attorney given by him to defendant No.7 dated 25.8.2008, two Dhall receipts; DW-2 Moula Bux; DW-3 Kulsoom (applicant No.2/defendant No.7), who produced registered sale deed. Thereafter, side was closed.
9. At the culmination of trial, the learned trial Court answered the Issue Nos.1 to 10 against the present applicants/defendant Nos.6 and 7, however, finding the suit barred by law of limitation, dismissed the suit of the plaintiff/respondent No.1.
10. Learned counsel for the applicants has argued that findings of learned appellate court on issue Nos.11 and 12 are illegal and void as no reason in support thereof has been assigned; suit was barred by more than eight (08) years but learned appellate court failed in appreciating this legal position; suit land in fact was Binami as it was purchased by applicant No.1/defendant No.6 in the name of his wife but this aspect was not properly appreciated; plaintiff/respondent No.1 took a false plea that power of attorney did not confer power to applicant No.1/defendant No.6 to sell the land. Lower courts erroneously assumed execution of cancellation deed before sale deed and illegally decided issue No.2 on said assumptions. Decisions of Honourable Supreme Court, reported as 2009 SCMR and PLD 2003 SC 31 are distinguishable. Sale in favour of defendant No.7/applicant No.2 by applicant No.1/defendant No.6 was legal bonafide and for consideration but lower courts held otherwise. There had been inordinate silence in challenging the sale deed.
11. Learned counsel for the respondents while refuting the above contentions has argued that instant revision is not maintainable under the law; appellate Court has rightly allowed the appeal, such judgment can’t be disturbed in revisional jurisdiction. He relied upon cases of AMNA RANI v. ASHFAQ AHMAD [2008 SCMR 805] and MUHAMMAD YASIN v. DOST MUHAMMAD [PLD 2002 SC 71].
12. I have heard learned counsel for the respective parties and have examined the available record. The perusal of the record shows that findings of both the courts below on Issue Nos.1 to 10 are concurrent, though conclusion, drawn by both the courts below is different; the results, drawn by both courts below, differs yet the concurrent findings on factual issues would require status of having been stamped by two courts below. Thus, principle to seek setting aside of such concurrent findings on issues by revisional court would be same i.e it should be prima facie established that same were either result of patent case of misreading or non-reading of evidence (material) or it was a case of jurisdictional error.
13. Let’s examine the case in hand on above touch-stone. The perusal of the record shows that execution of power of attorney is not a disputed fact, however, what the dispute is:
‘whether such power of attorney conferred an authority to applicant No.1/defendant No.6 to sell out the land of plaintiff/ respondent No.1?’
14. Worth to add here that the power of attorney is a written authorization by virtue of which the principal appoints a person as his agent and confers upon him the authority to perform specified acts on his behalf. The power of attorney must be strictly construed and the object and scope whereof must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. The general words used in the instrument should be read and interpreted with reference to the special power or the object of the instrument because it is not the label but intention of the instrument which matters. To make my view point further clear, I would refer the judgment of Honourable Supreme court, recorded in the case of Imam Din v. Bashir Ahmed (PLD 2005 SC 418), wherein it was held:-
“The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution.”
(Underling has been supplied for emphasis)
15. In the instant matter the object and purpose of general power of attorney is evident from the document itself wherein the purpose is confined as to manage and look after the land. The scope, however, was further extended by conferring specific powers to: appear in any court in Pakistan on filing of case, engage counsel, file vakalatnama, file suit, file written statement. The general words, including “بيع” is also mentioned in the instrument but the general word was/is required to be construed with object and scope of the instrument which no where appears to have been meant to authorize the agent to sell. In the judgment supra, the honourable Supreme Court referred the legal principle, held in Fida Mohammad v. Muhammad Khan (PLD 1985 SC 341) as under:-
“It is wrong to assume that every “general” Power-of-Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the Power-of-Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deduceable from words spoken or written which do not clearly convey the principal’s knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation.”
(Underling has been supplied for emphasis)
In addition to above, it is also a matter of record that present applicant No.1/defendant No.6 executed the sale deed in favour of the applicant No.2/defendant No.7 i.e his second wife. Before executing registered sale deed as attorney in the name of his own wife the applicant No.1/defendant No.6 was always in legal obligation to have obtained special permission from his principal i.e plaintiff/respondent No.1 because it is now well-established principle of law that :
“It is settled principle of law that whenever a general attorney transfers the property of his principal in his own name or in the name of his close fiduciary relations, he has to take special permission from the principal’
Reference, if any, needed can well be made to the case of Mohammad Taj v. Arshad Mehmood & 3 others (2009 SCMR 114), Amna Rani & Ors v. Ashfaq Ahmed & Ors. (2008 SCMR 805) and Mohammad Yasin & another v. Dost Mohammad & Ors (PLD 2002 SC 71).
Moreover, the applicant No.1/defendant No.6 specifically admitted in his cross-examination that:
“It is correct to suggest that prior to selling of suit land I had not obtained permission from the plaintiff”.
Thus, the legal position, discussed above, coupled with specific admission of the applicant No.1/defendant No.6 (agent) leaves nothing ambiguous that the concurrent findings of two courts below on the Issue No.1 were proper and legal one.
17. At this juncture, I would like to make it clear that the plea of the learned counsel for the applicants with regard to status of the property to be ‘Binami’ looses its substance, particularly in view of the following admissions of the applicant No.1/defendant No.6 i.e:
‘It is correct to suggest that after the death of my first wife, the foti khata was badal in my name according to my shares in suit land and the remaining suit land was given to the plaintiff. I have not filed any application before revenue authority that I have purchased the suit land and I have more shares in the suit land then the plaintiff. I have not filed any suit in any court that I have purchased the suit land with my own money.’
The above admission is sufficient to prove that applicant No.1/ defendant No.6 never claimed the property to be ‘Binami’ but from his own conduct and attitude proved the title of his first wife Mst. Sultana (mother of plaintiff) as ostensible. Thus, this plea of the applicants is of no help at all.
18. After discussion on the Issue No.1, the vitality of the Issue No.2, is not as material as it should have been if the findings on issue would have been otherwise. However, the findings of the lower courts below in respect of the issue No.2 are also appearing to be valid and proper. The plaintiff/respondent No.1 to prove the execution of ‘Abtalnama’ examined PW Mohammad Shafique, Record Keeper Sub-Registrar (Rural) Rawalpindi who confirmed the execution of ‘Abtalnama’ by plaintiff/respondent No.1. Since the document (Abtalnama) is a registered document and a registered document always carries sanctity therewith and strong evidence is required to cast an aspersion on the genuineness thereof. The applicants brought no strong evidence to rebut the execution of registered ‘Abtalnama’. The power of attorney was not claimed to be against consideration hence the plaintiff/respondent No.1 was competent to cancel/revoke the same through same mode. Reference can be made to the case of Rasool Bukhsh & another v. Mohammad Ramzan (2007 SCMR 85) wherein it was held:-
“Abtalnama is a registered document. It is a settled law that the registered document has sanctity attached to it and stronger evidence is required to cast a aspersion on its genuineness as law laid down by this Court in Mirza Muhammad Sharif’s case NLR 1993 Civil 148. It is also a well-established legal proposition that a person who has been validly authorized to alienate the property of another, he has to satisfy the Court that at the time of entering into a transaction of sale of a property, the principal was not available and if there is no evidence then the transaction does not hold good unless it is established on record that the transaction has been made with knowledge and with consent of the principal while entering into general power of attorney as law laid down by this Court in Fida Mohammad’s case PLD 1985 SC 341. It is pertinent to mention here that the registered document is not only binding to the parties in the document but is equally applicable to the 3rd party.
It is also an admitted fact that the petitioner No.1 had sold the property in question having general power of attorney of the respondent to petitioner No.2 who is his real brother coupled with the fact that the respondent had already cancelled the same before the execution of sale-deed in question. Such type of transactions are considered sham transactions. See Sardar Ahmed Khan’s case PLD 1950 Pesh. 45, Wali Muhammad’s case PLD 1989 Lah. 440 and Fida Mohammad’s case (supra).
(underlining has been provided for emphasis)
19. Further, the perusal of the record shows that applicant No.1/ defendant No.6 during examination claimed that:
‘The plaintiff demanded money from me as he was going to abroad. I had sold out the suit land to defendant No.7 (my second wife) through registered sale deed for money. I gave the money of suit land to plaintiff. The plaintiff had given general power of attorney to me for selling the suit land and I used the same.’
Through the above, the applicant No.1/defendant No.6 tried to claim the power of attorney against consideration although it was never claimed so during the pleading. The applicant No.2/defendant No.7 also claimed in her cross examination that:
‘It is correct to suggest that the defendant No.6 has not given share to plaintiff. Voluntarily says Rs.500,000/- was given to plaintiff by defendant No.6. It is correct to suggest that I have not produced any proof of payment of Rs.500,000 to plaintiff.’
20. Since, it is well settled law that what is not in the pleading cannot be considered if taken subsequently. Even otherwise, the power of attorney no where speaks that it was against consideration. Since the applicant No.2/defendant No.7 failed in proving payment of consideration. In absence of payment of consideration a ‘sale’ does not become legally complete, as held by honourable Supreme Court in case of Rehmatullah & ors v. Saleh Khan & ors (2007 SCMR 729) wherein it is held:
“The petitioners have failed to prove that sale price was paid to the original owner as evident from para.8 of the impugned judgment, therefore, there was no sale in the eye of law as law laid down by this Court in Muhammad Shafi’s case PLD 1986 SC 519”.
Where the Vendee fails in proving/establishing payment of consideration or due diligence before taking title, he/she cannot claim to the protection available to a bonafide owner. As held by apex court in the case of Imam din v. Bashir Ahmed (PLD 2005 SC 418):-
“11. The alleged power of attorney was executed and registered in 1962 whereas the transaction of oral sale had taken place in April, 1985 and there was nothing on record to suggest that at the time of sale, the attorney was holding a valid authority. There is also no explanation that why the attorney without seeking instruction from principal, preferred to enter into an oral transaction of sale and why vendees did not consider necessary to confirm about the authority of the attorney and genuineness of the transaction from the owner. The respondents have not produced an independent person to prove the payment of sale price to Tulli or that sale had taken place on his instructions and thus the manner in which the attorney and the vendees conducted in the matter, would create a serious doubt about the bonafide of vendees and genuineness of the transaction.”
(Underling has been supplied for emphasis)
Therefore, the findings of the Issue No.3 is also proper. The Issue No.4 to 10 appear to be controlled by the Issue Nos.1 to 3 hence the same need not be discussed after conclusion on the issue Nos.1 to 3. Accordingly, I find the findings of both the courts below on these issues proper. However, the findings of the lower courts below are conflicting in respect of the Issue Nos.11 to 14. The findings on issue No.12, being bone of conflict needs to be discussed to examine that as to which of the courts was proper in reaching to the result of such issues.
Though, the plaintiff/respondent No.1 cancelled the power of attorney in year 1997 while referring the reason of ‘loosing trust’ but the document (Abtalnama) does not speak that the plaintiff/respondent No.1 was removing his father (applicant No.1/defendant No.6) from possession of the land or that he (plaintiff/respondent No.1) himself was taking control and possession thereof. As per claim of the plaintiff/respondent No.1 never came at the land (Badin) and was residing at Rawalpindi hence was unaware about the ‘fraud’. Such claim was even stood confirmed by the words of the applicant No.2/defendant No.7 as she stated in his examination-in-chief that:
“The defendant No.6 used to look-after the suit land. After the death of first wife of defendant No.6 the khata of suit land was changed in the name of her legal heirs viz. plaintiff and defendant No.6. After the death of mother of plaintiff, he did not come in Badin and defendant No.6 was looking after the land’
The legally established principle that ‘limitation runs from date of knowledge’ needs not be reiterated nor it needs any kind of special way to establish. Since the plaintiff/respondent No.6 had claimed to be unaware of the transaction because of his not visiting at Badin thus his claim to have acquired knowledge and notice on his visit to Badin was rightly believed by the learned appellate Court, therefore, I am quite firm in holding that findings of the learned trial court on the Issue Nos.11 and 12 were not proper hence was rightly reversed by the learned appellate Court.
21. As discussed above, it becomes quite obvious that the possession of the applicants cannot be termed to be unauthorized/illegal or without permission of the plaintiff/respondent No.1, the lower courts rightly found the plaintiff/respondent No.1 not entitled for ‘mesne profit’, because to be entitled for ‘mesne profit’ one has to be proved to be wrongly kept out of his/her property which prima facie does not appear to be case with plaintiff/respondent No.1.
22. Keeping in view of above, I do not find any substance in the instant revision petition which was accordingly dismissed by short order dated 16.02.2015. In consequence whereof, judgment and decree of appellate court is maintained, with no order as to cost. These are the detailed reason.