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Official Citation: 2024 YLR 1
Court / Jurisdiction: Lahore High Court
Year of Decision: 2021
Decision Date: 2021-12-31
Parties: Muhammad Umair Pasha, etc, Sheraz Ali vs District Collector, etc, Naila JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2021-12-31, officially reported as 2024 YLR 1. In this matter between Muhammad Umair Pasha, etc, Sheraz Ali and District Collector, etc, Naila JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 1
Court Name: Lahore High Court Judge(s): Anwaar Hussain Title:Muhammad Umair Pasha, etc, Sheraz Ali vs District Collector, etc, Naila
JUDGMENT
Reported As: 2022 LHC 8509, 2024 YLR 1 Result: Civil Revision Allowed Judgment JUDGMENT Anwaar Hussain, J. Through this single judgment, titled Civil Revision (hereinafter referred to as "CR No. 103"), along with Civil Revision No.104-D/2022 (hereinafter referred to as "CR No. 104") as well as Civil Revision No. 212-D/2022 (hereinafter referred to as "CR No. 212") are intended to be decided. 2. Civil Revisions referred above lay challenge to the findings of the learned Appellate Court below passed by way of a consolidated judgment dated 11.12.2021, in three separate appeals under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). CR No. 103 emanates from the civil suit titled "Naila Tabassum v. District Collector and others" (hereinafter referred to as "the declaratory suit") in which declaration along with possession as well as permanent and mandatory injunction and cancellation of sale deed bearing Document No.3610/1 dated 20.12.2018 (hereinafter referred to as "the impugned sale deed") pertaining to house measuring 06 marlas and 249 square feet situated in Model Colony, Jhelum (hereinafter referred to as "the suit property") was sought whereas CRs No.104 and 212 relate to findings of the learned Courts below in case titled "Naila Tabassum v. Sheraz Ali and others" (hereinafter referred to as "the recovery suit") wherein recovery of household articles, valuing Rs. 3,153,700/-, was prayed for by respondent No.3/Naila Tabassum, who for facility of reference is hereinafter referred to as "the plaintiff/respondent". The learned Trial Court decreed the declaratory suit and judgment and decree of learned Trial Court was upheld by the learned Appellate Court below whereas the recovery suit was dismissed by the learned Trial Court, however, the learned Appellate Court
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accepted appeal of the plaintiff/respondent and decreed the recovery suit as well. The petitioners in CR No. 103, namely, Muhammad Umair Pasha and Mst. Ayesha Pasha Dar were defendant Nos.4 & 5 in the declaratory suit and were purchasers of the suit property and are hereinafter referred to as "the defendants/purchasers". Respondent No.4, namely, Sheraz Ali was defendant No.3 in the declaratory suit and is also petitioner in CR No. 212, who was admittedly given general power of attorney by the plaintiff/respondent to deal with suit property and is hereinafter referred to as "the defendant/attorney". In the declaratory suit, District Collector, Jhelum as well as Sub-Registrar, Jhelum were also arrayed as defendants who are respondents before this Court in CR No. 103 and are hereinafter referred to as "the official respondents". In the recovery suit, defendant/attorney was defendant No.1 and defendants/purchasers were defendants No.2 & 3. 3. Succinctly stated, the plaintiff/respondent in the declaratory suit claimed that she is owner in possession of the suit property vide registered sale deed No.443 dated 08.03.1993 and the defendants/purchasers as well as the defendant/attorney have nothing to do therewith, with the averments that the defendant/attorney, in connivance with the official respondents, prepared a general power of attorney bearing Document No.235/4 dated 27.04.2017 (hereinafter referred to as "the GPA") and misused the same for selling the suit property to the defendants/purchasers through the impugned sale deed and when the plaintiff/respondent came to Pakistan from Denmark, on 23.01.2019, she immediately got the GPA revoked, through revocation deed dated 29.01.2019 and, hence, the impugned sale deed, in favour of the defendants/purchasers is result of fraud and is liable to be cancelled. The defendants/purchasers filed contesting written statement with the plea that they are transferees for value and the declaratory suit has been instituted just to cause harassm ent to them. The defendant/attorney also filed a contesting written statement with the assertion that the plaintiff/respondent took Rs.6,000,000/- from him and the GPA was accordingly executed in his favour and it was on the strength of the GPA, which is a duly registered document for consideration, that he sold the suit property to the defendants/ purchasers and possession was accordingly delivered. In the recovery suit, the plaintiff/respondent asserted that there were household articles lying in the suit property, as per list appended with the recovery suit, which have been illegally taken over by the defendants/purchasers and despite repeated demands, the same have not been returned. The recovery suit was also contested by the defendants/purchasers as well as the defendant/attorney by filing separate written statements. 4. Consolidated issues were framed in both the suits, followed by recording of the evidence and, vide judgment and decree dated 08.06.2021, the declaratory suit of the plaintiff/respondent was decreed whereas the recovery suit was dismissed. The said judgment was assailed by all the parties except the official respondents and same was upheld in appeal, vide impugned judgment and decree dated 11.12.2021, to the extent of the declaratory decree in favour of the plaintiff/respondent and was reversed by the learned Appellate Court below to the extent of the recovery suit by accepting the appeal of the plaintiff/respondent and the recovery suit was also decreed. Hence, the instant as well as the connected Civil Revisions have been filed. 5. Learned counsel for the defendants/purchasers submits that execution of the GPA by the plaintiff/respondent in favour of the defendant/attorney was never denied and hence, the findings of the learned Courts below are not sustainable in the eye of law. It is all the more so when no particulars of fraud have been given in the plaint, in general, and the averments made in the plaint of the declaratory suit does not contain a word against the defendants/purchasers in particular. Adds that the defendants/purchasers are transferees for value and both the learned Courts below have erred in appreciating the factual matrix as well as evidentiary resume of the case inasmuch as prior to institution of the suits, the plaintiff/respondent instituted a suit against the defendants/purchasers as well as the defendant/attorney (hereinafter referred to as "the prior suit"), on 02.02.2019, with same relief, with the averments that one Khurram Shahzad is son of a
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cousin of the plaintiff/respondent and on instructions of said Khurram Shahzad, she executed the GPA in favour of the defendant/attorney who is statedly the best friend of said Khurram Shahzad and the purpose was to defend a suit titled "Manzoor Masih vs Naila Tabassum" instituted against her by one Manzoor Masih pending before the Civil Court, Jhelum pertaining to the suit property and the GPA has been misused by the defendant/attorney whereas in the declaratory suit, the plaintiff/respondent has twisted her stance regarding the role of said Khuram Shahzad. Further adds that the plaintiff/respondent is approbating and reprobating inasmuch as on the one hand, she claims that she is a household lady settled in Denmark for the last 40 years, prior to the institution of the suits, and is unable to read and write Urdu language and was unaware of the contents of the GPA whereas, on the other hand, her entire pleadings are in Urdu and so is the GPA as well as the revocation deed, which goes on to show that the plaintiff/respondent is in league with the defendant/attorney and said Khurram Shahzad, and intends to deprive the defendants/purchasers from the ownership of the suit property, which she herself has sold to the defendants/purchasers, through her general attorney (defendant/ attorney). 6. Learned counsel for the defendant/attorney submits that the defendant/attorney purchased the suit property for value coupled with the GPA, which is duly registered and on the basis of the same, the suit property was further sold to the defendants/purchasers and hence, no fraud was committed. 7. Conversely, learned counsel for the plaintiff/respondent submits that the learned Appellate Court below has rightly upheld the findings in the declaratory suit instituted by the plaintiff/respondent and has rightly reversed the findings of the learned Trial Court in the recovery suit, to the extent of recovery of household articles lying in the suit property. Learned Law Officer submits that the matter relates to the dispute between the private parties and allegation of any connivance of the official respondents in preparation of the GPA has not been established and the same, being genuine and registered, carries presumption of truth, which the plaintiff/respondent failed to rebut. 8. Arguments heard. Record perused. 9. Following are the core issues, which require opinion of this Court: i. Whether the plaintiff/respondent was able to prove that the defendant/attorney obtained the GPA fraudulently in connivance with the defendants/purchasers and the official respondents and while exceeding the authority granted to him under the GPA, has alienated the suit property in favour of the defendants/purchasers through the impugned sale deed and therefore, the same is void ab-initio and not binding on the plaintiff/ respondent and whether she has discharged the burden to prove the same? and ii. Whether the plaintiff/respondent was entitled to get benefit of being a pardanashin lady and as a consequence thereof it was for the defendants/purchasers to prove that they are bonafide purchasers? 10. The plaintiff/respondent admittedly is an overseas Pakistani residing in Denmark for the last more than 40 years. She claims that she is a simple and pardanashin lady, unable to read and write Urdu language and is also unaware of the niceties of the legal process in Pakistan and hence, when she was persuaded by her close relative, namely, Khurram Shahzad to execute the GPA in favour of the defendant/attorney for pursuing the suit instituted by one Manzoor Masih, she did so without being conscious and aware of the fact that power to sell the suit property has also been included in the GPA and conferred upon the defendant/attorney. In this manner, fraud has been committed and played upon her and the GPA was misused by the defendant/attorney. It is with such assertions that the declaratory suit was instituted whereas the recovery suit was instituted with the averments that when the possession of the suit property was given by the defendant/attorney to the defendants/purchasers, valuables such as furniture, electronics etc.,
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worth Rs.3,153,700/- were lying in the same that have been taken over illegally by the defendants/purchasers. 11. Before rendering the opinion in the matter, it will be imperative to reproduce consolidated issues framed by the learned Trial Court, which read as under: "CONSOLIDATED ISSUES 1. Whether plaintiff Naila Tabassum is owner of the suit house while registered sale deed No.3610 dated 20.12.2018, executed in favour of defendants No.4 & 5, by defendant No.3 through general power of attorney No.235 dated 27.04.2017 is result of fraud, misrepresentation and collusiveness of defendants, hence same is liable to be cancelled? OPP 2. Whether defendants No.4 & 5 have illegally occupied the suit house? OPP 3. If issue No.1 & 2 are proved in affirmative, whether plaintiff Naila Tabassum is entitled to get the decree of declaration, cancellation of registered sale deed No.3610 dated 20.12.2018, recovery of possession alongwith permanent and mandatory injunction as prayed for? OPP 4. Whether plaintiff Naila Tabassum is entitled to recover household articles as per list annexed with connected plaint of suit title Naila Tabassum VS. Sheraz Ali etc or Rs.31,53,700/- as alternative price? OPP 5. Whether plaintiff has no cause of action to file instant suit as well as connected suit title Naila Tabassum VS. Sheraz Ali etc? OPD 6. Whether defendants No.4 & 5 are bona-fide purchaser of the suit house through registered sale deed No.3610 dated 20.12.2018? OPD No.4 & 5. 7. Whether the suits of plaintiff title "Naila Tabassum VS. District Collector etc" and "Naila Tabassum vs. Sheraz Ali, etc" are false and frivolous, hence, same are liable to be dismissed with special cost u/s 35-A CPC? OPD. 8. Relief." The suits were heard together and as stated earlier, through consolidated judgment, the learned Trial Court, decreed the declaratory suit whereas the recovery suit was dismissed. Insofar as dismissal of the recovery suit is concerned, the glaring contradiction between the statements of the plaintiff/respondent led the learned Trial Court to render its findings inasmuch as the plaintiff/respondent in a criminal case got registered by her, admittedly, claimed the value of the household articles in terms of Rs.1,000,000/- whereas the same has been inflated to Rs.3,153,700/- as alternate price of said articles claimed in the recovery suit. While deciding the appeals preferred by the parties, the learned Appellate Court upheld the findings of the learned Trial Court to the extent of the declaratory suit whereas regarding the recovery suit, the findings were reversed and the recovery suit was also decreed, inter alia, for the reasons that prior to execution of the impugned sale deed by the defendant/attorney in favour of the defendants/purchasers, an agreement to sell was executed which contemplated that the suit property was sold along with household articles and hence, the defendants cannot deny that said articles are not lying with them. 12. The nub of the matter is the status of the GPA. Perusal of the record with the able assistance of learned counsel for the parties reveals that the plaint, the revocation deed as well as the appeal are clearly written in Urdu language and hence, the argument of learned counsel for the plaintiff/respondent that she was naive and unaware about the contents of the GPA does not hold water. A copy of FIR No.86/19 was exhibited as Exh-P.5 whereas the copy of the suit titled "Manzoor Masih v. Naila Tabassum" was exhibited as Exh-P.6. Certified copy of the prior suit was also exhibited as Exh-D.2. In the said FIR, the plaintiff/respondent narrated the following story:
However, when the plaintiff instituted the prior suit (Exh-D.2), she categorically stated as under
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(Emphasis supplied) From perusal of the above quoted passage from the FIR as well as the plaint of the prior suit when put in juxtaposition with the plaint of the declaratory suit, it is abundantly clear that there is a disconnect in stance of the plaintiff/respondent inasmuch as, in the prior suit, she clearly alleged act of blackmailing on part of the defendant/attorney as well as her own nephew, namely, Khurram Shahzad and subsequently, in the declaratory as well as recovery suits, produced said Khurram Shahzad as her own witness in support of her contentions without rendering any plausible explanation as to why she decided not to prosecute rather produce him as her own witness when Khurram Shahzad was allegedly instrumental in introducing the defendant/attorney to the plaintiff/respondent. Moreover, it is astonishing that on the one hand, she alleges in the prior suit that Khurram Shahzad is a blackmailer and has acted in connivance with the defendant/attorney to her detriment and on the other hand, she has produced said Khurram Shahzad as her own witness and relied upon his testimony in the proceedings conducted in the suits. This conduct of the plaintiff/respondent is quite improbable to be believed upon. Her stance that she is unable to understand Urdu language also falls on the ground when she herself stated in the prior suit that the composition of the GPA was written/prepared by the said Khurram Shahzad who never stated in his statement that no power to sell the suit property was conferred upon the defendant/attorney and some fraud was committed in connivance with the official respondents. In fact, in plaint of the declaratory suit, there is just a single line to the effect that the GPA was executed in connivance with the official respondents, however, in the deposition, no such facts were asserted. Even due execution and registration process was not seriously challenged by the plaintiff/respondent and hence, it fortifies presumption of due execution of the GPA and truth attached thereto. Even otherwise, if the GPA is carefully perused, the same discloses that it was executed by the plaintiff/respondent which she admitted and based upon the GPA, after about more than one year and seven months of its execution, the defendant/attorney alienated the suit property in favour of the defendants/purchasers much prior to the revocation of the GPA by the plaintiff/respondent and as such, the GPA has already been acted upon by her attorney before its revocation. Therefore, the plaintiff/ respondent, being the principal, is bound by the act of the defendant/attorney. 13. At this juncture, it is worth mentioning that a power of attorney is written authorization, whereby "the principal" authorizes the agent to do the acts specified therein on behalf of "the principal" which, when executed, will be binding on "the principal" as if done by "the principal" himself. Primary purpose of instrument of such nature is to assign authority of "the principal" to another person as his agent. In this regard, case reported as "Imam Din and 4 others v. Bashir Ahmed and 10 others" (PLD 2005 Supreme Court 418) is referred wherein, the Hon'ble Supreme Court of Pakistan, inter alia, has held as under: "7. ...The power of attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent. The main object of such type of agency is that the agent has to act in the name of principal and the principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument." 14. In the instant case, since the factum of execution of the GPA is admitted, the plaintiff/respondent, as the principal thereunder, cannot absolve herself from the acts done by the attorney/defendant on her behalf under the GPA. It has been the stance of the plaintiff/respondent that she had not authorized the defendant/attorney to execute the impugned sale deed and the GPA was only executed for a specific purpose of contesting a case, which had been instituted at
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behest of the defendant/attorney by one Manzoor Masih. The plaintiff/respondent came to the Court with a specific stance and hence, was required to prove the case independently and cannot bank upon the weakness of the statement of the defendants/purchasers. The defendants/purchasers cannot be called upon to prove the negative thing that the GPA was not fraudulent rather the plaintiff/respondent was obligated to prove the same with positive evidence. In addition, needless to mention that as per Article 129 of Qanun-e-Shahdat Order, 1984 (hereinafter referred to as "the QSO"), the Court has to draw a presumption regarding execution and authenticity of a registered instrument such as the GPA. The plaintiff/respondent admitted that she executed the GPA in favour of the defendant/attorney but claimed that fraud was played on her. The plaintiff/respondent while being cross-examined categorically accused the defendant/attorney (Sheraz) by stating as under:
(Emphasis supplied) The collusion in obtaining the GPA has not been attributed to the defendants/purchasers let alone that the same was proved. Moreover, even if it is assumed that she had been defrauded by her attorney, the consequences of the fraud cannot be shifted to the defendants/ purchasers who purchased the suit property on the basis of the GPA, the execution whereof is admitted by the plaintiff/respondent herself. If the consequences of a fraud are ever to be faced by someone, it ought to be the one who made the commission of such fraud possible and not the one who has no role to play with the commission of such a fraud. Therefore, the defendants/respondents are not to be blamed for. 15. It is also worth mentioning that the plaintiff/respondent denied the contents of the GPA on the ground that she is an overseas Pakistani settled in Denmark for the last more than 40 years and is a simple housewife having no awareness of the legal formalities in Pakistan. At this juncture, it is imperative for this Court to address the second core issue as to whether the plaintiff/respondent was entitled to plead the defence that she is an elderly and simple lady entitled to protection that law envisages for a pardanashin lady. Needless to mention that the burden could have been shifted to the defendants/purchasers, being beneficiaries under the impugned sale deed executed by an attorney, to prove the sale transaction and payment made thereunder only if the plaintiff/respondent had measured up to the status of a pardanashin lady unable to transact her worldly affairs on account of her seclusion and privacy from socio-economic conditions of the outer world. In case reported as "Muhammad Naeem Khan & another v. Muqadas Khan (decd) thr. LRs & another" (PLD 2022 SC 99), the Hon'ble Supreme Court of Pakistan held as under: "8. The denotation and import of phrase "Pardanashin lady" depicts a woman who heeded stringent and unyielding canons and ethics of seclusion and privacy and according to the customs may object to show up in a public office or have no communication except behind the screen with any male person save as near relatives .............. If authenticity or trueness of a transaction entered into by a pardanashin lady is disputed or claimed to have been secured on the basis of fraud or misrepresentation, then onus would lie on the beneficiary of the transaction to prove his good faith and the court has to consider whether it was done with freewill or under duress and has to assess further for an affirmative proof whether the said document was read over to the pardanashin or illiterate lady in her native language for her proper understanding." The Hon'ble Supreme Court further held as under: "9. The obvious underlying principle is to protect and save a weak and helpless woman from danger and risk of an unfair deal, thenceforth, it is to be ensured by the court in tandem, whether the alleged deal or transaction was effected by her free will or through coercion/duress or emotional blackmailing or whether it was simply aimed to deprive her right or interest in the property or divest her due share in the inheritance by male members of her family. The survey and
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analysis of some judicial precedents rendered by our courts and pronouncement of courts from Indian jurisdiction have in fact woven a cloak of protection for pardanashin ladies, who because of their ignorance, inexperience of business matters and social conditions are not able to understand the nature of business transactions.......... The question is whether a lady is pardanashin or not is always a question of fact which should be specifically pleaded and proved by some cogent evidence and is not to be used as weapon or shield to defend the lawsuit under the garb of this plea at original or appellate stage." (Emphasis supplied) Keeping in sight the above quoted principles laid down by the Hon'ble Supreme Court, the assertion of the plaintiff/respondent seems to be not plausible inasmuch as it sounds quite unbelievable and defies common sense and logic that a lady who is well settled in Europe for the last 40 years and managing the suit property on her own, prior to execution of the GPA, by frequently travelling back to Pakistan for this purpose, and signing the documents in English, would be too naive to not even ask for the contents of a document to be read over to her that admittedly pertains to the suit property and will not make an enquiry into state of affairs regarding the suit property particularly when, as per her own contentions, the purpose to defend the suit titled "Manzoor Masih v. Naila Tabassum" had been completed for which the GPA was executed and the GPA was not revoked immediately thereafter. It can be further noted that even the alleged execution of the GPA for the purpose of defending the suit titled as "Manzoor Masih v. Naila Tabassum", as per her own assertion was on the asking of Khurram Shahzad without the advice and/or association of her immediate male family members. This in itself belies her claim of being a pardanashin lady. Similarly, in terms of Section 60 (2) of the Registration Act, 1908 (hereinafter referred to as "the Act 1908"), certificate of registration…
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