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Official Citation: 2024 SCMR 1233
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2024
Decision Date: 2024-02-01
Parties: Mst. Iqbal Bibi & others vs Kareem Hussain Shah & others
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2024-02-01, officially reported as 2024 SCMR 1233. In this matter between Mst. Iqbal Bibi & others and Kareem Hussain Shah & others, 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 SCMR 1233
Court Name: Supreme Court of Pakistan Judge(s): Irfan Saadat Khan Title: Mst. Iqbal Bibi & others vs Kareem Hussain Shah & others Case No.: Civil Appeal No. 1229 of 2018 Date of Judgment:2024-02-01 Reported As: 2024 SCP 152, 2024 SCMR 1233 Result: Appeal Allowed
JUDGMENT
JUDGMENT Irfan Saadat Khan, J.- Brief facts of the Hs before us are that the Respondents filed suit No. 2G4/ 1 of 2004 on 22.06.2004 in the Court of the Senior Civil Judge Haripur, which was marked for hearing to Civil Judge-V ("Civil Judge"), Haripur, for declaration to the effect that the Respondents were owners of 2 Kanals of land in Khasra No. 558/2/1 to and 6 Kanals and 19 Marls of land in Khasra No. 558/2/2, situated in Mauza Khui Narran, Tehsil and District Haripur (herein after referred to as the khasras) and that the Defendants, who are the Appellants in this matter before us, have no concern with the said property. 2. The Respondents also sought declaration that the Appellants' Power of Attorney, in the name of one Gohar Shah, was false, thus mutations No. 1807, 1809, and 1808 attested on 05.11.1990 were illegal; therefore, the Respondents prayed for correction of the revenue record and cancellation of the aforementioned mutations. The Appellants, who were the answering Defendants in the aforementioned civil suit, denied the claim of the Respondents and raised various legal and factual objections in the matter before the fora below. 3. In light of the divergent pleadings of the parties, the Civil Judge framed ten issues in the matter, after which both the parties submitted Plaintiffs, produced 3 witnesses; and the Appellants, who were the Defendants, also produced 3 witnesses. 4. During the evidence of the parties, PW-1 exhibited attested copy of mutation No. 1807 attested on 15.11.1990, attested copy of mutation No. 1808 attested on 15.11.1990, attested copy of mutation No. 1809 attested on 15.11.1990, and mutation No. 2072 attested 16.06.1993. Attested copy of the Power of Attorney, dated 24.09.1998, issued in favor of Syed Iftikhar Hussain Shah s/o Anwar Hussain Shah by the Respondents was also exhibited.
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5. The Halqa Patwari, who was called as witness by the present Respondents, exhibited fard jamabandi for the following years: 1988/1989, 1991/1992, 1992/1993, 1996/1997, 2001/2001, and 2004/2005. Moreover, the Halqa Patwari also exhibited Aks Shajra and roznamcha wakiati. 6. The Registry Moharrar, Tehsil Haripur, who was also called as witness by the present Appellants, exhibited attested copy of the Power of Attorney dated 05.10.1990 executed by the Respondents in favor of their father Gohar Shah, which had been duly endorsed by the District Sub-Registrar Abbottabad on 30.10.1990; wherein complete powers were given to Gohar Shah by the Respondents, amongst other clauses, regarding sale of all or any of their lands in Pakistan to any person. The Registry Moharrar also exhibited register extract of the said Power of Attorney. 7. To summarize, at the expense of reiteration, in essence the lis revolves around Appellants claiming the land in aforementioned Khasras; whereas the Respondents contend that the Power of Attorney on which the said land was being claimed was a forged and fabricated document; thus mutations No. 1807, 1808, and 1809, dated 15.11.1990, attested on the basis of the allegedly forged and fabricated document were illegal. 8. Going back to the case, after the evidence stage had lapsed, the Civil Judge, after hearing final arguments of the parties, decreed suit No. 204/1 dated 22.06.2004, on 26.11.2010, in favor of the Respondents. It is pertinent to mention here that the Respondents have already filed an execution petition for this decree proceedings before the Executing Court, which is pending disposal. 9. Be that as it may, aggrieved of the judgment and decree dated 26.11.2010, the Appellants filed an Appeal, No. 166/13 of 2010, on 27.12.2010, before the District and Sessions Judge, Haripur, which was marked for hearing to Additional District and Sessions Judge-I, Haripur ("ADJ"). The ADJ dismissed this Appeal of the Appellants on 29.02.2012. Subsequently, the Appellants filed Civil Revision, No. 222-A/ 2012 before the Peshawar High Court, Abbottabad Bench, which dismissed the Civil Revision of the Appellants, and upheld the judgement and decrees of the Civil Judge and the ADJ, via judgement dated 18.05.2016, in the following terms: "14. The contention of learned counsel for the Appellants, that the suit was, hopelessly time barred in view of Article 120 of the Limitation Act, 1908, which prescribes six (06) years for suit of the kind under consideration, is misconceived. No doubt, that the period of limitation for declaratory kind of suits where no specific provision is provided, thereunder the Act ibid, such period be counted in term of Article 120 of the Act, but there is an exception to the provision of ibid law where a person is found to be in possession of the land, then, every fresh Jamabandi accrues a fresh cause of action against the entries in record of rights, not incorporated in accordance with law. ..... 18. Mere attestation of mutation on the basis of a power of attorney, where the original power of attorney is not proved, does not confer or extinguish any right of an owner and such mutations are always treated to be documents void ab initio and for its formal cancellation, the period of limitation shall be reckoned from the date, when it came in the knowledge of the plaintiff (s). 19. It is settled principle of law that concurrent findings of the courts of competent jurisdiction could not be interfered with by a revisional courts, where no any illegality or irregularity, want of jurisdiction, misreading and nonreading of evidence was pointed out therein, the impugned judgments. 20. In case in hand, the impugned judgments rendered by the learned courts below are based on proper appreciation of law and appraisal of evidence, require no legal interference. Therefore, for the aforementioned reasons, this revision petition, being devoid of any merit, is hereby dismissed accordingly with no order as to cost." 10. It is this aforementioned judgement, dated 18.05.2016, ("Impugned Judgement") that the Appellants have challenged before us. Leave to Appeal was granted on 12.10.2018 in the following terms:
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"After hearing the learned counsel for the parties, we grant leave to appeal on the points noted in the our order dated 20.2.2017." The aforementioned Order, dated 20.02.2017, is as follows: "States that the courts below have failed to consider the presumption attached to the power of attorney under Article 95 of the Qanoon-i-Shahadat Order, 1984 which was duly testified by the Consulate General of Pakistan in Malaysia and was registered in Pakistan; besides the transactions in question were made in the year 1990 by the father of the respondents as their attorney whereas the suit was filed after 13 years, 7 months and 6 days; the suit was blatantly barred by time but neither a ground(s) for exemption from the law of limitation has been provided in the plaint in terms of Order VII Rule 6 of the CPC nor has it been shown under what provision of the Limitation Act, 1908 should the time be condoned, yet the courts on extraneous considerations and by applying the incorrect ratio of the law laid down in the judgment reported as Abdul Rehman and others Vs. Ghulam Muhammad (2010 SCMR 978) has held that the limitation would not be attracted, where a document is void or voidable." 11. Mr. Rashid ul Haq Qazi, ASC appeared on behalf of the Appellants and argued that the Impugned Judgement is against settled provisions of statutory law, the two courts below have given wrong and erroneous findings, and that the High Court in the Impugned Judgement could not term the said findings as concurrent findings of fact and then go on to dismiss the Civil Revision without interfering with the questions of law decided by the courts below. Moreover, the Counsel for the Appellants argued that the High Court could not extend the period of limitation of the suit of the Respondents, who had approached the Civil Judge after more than 13 years, as the limitation prescribed for such suits was 6 years, by virtue of Article 120 of the Limitation Act, 1908 ("Limitation Act"). 12. Mr. Junaid Akhtar, learned ASC has appeared on behalf of the Respondents and submitted that the three courts below have decided the matter in favour of the Respondents and that there are concurrent findings in their favour. He stated that the issue of limitation does not arise in the instant matter as the moment Iftikhar Hussain Shah came to know about the alleged illegal mutation entries from the revenue record he filed the suit in a timely manner. He stated that insofar as the factual aspects of the matter were concerned, the fora below have threshed out the matter threadbare and after examining the record, evidence, and witnesses have found the mutation entries in favor of the present Appellants to be false and fabricated. He stated that it is a settled proposition of law that concurrent findings are not to be disturbed until and unless they are found to be erroneous or perverse, he stated that in the instant matter all the three courts below have come to the unanimous decision that the mutation entries in respect of the Khasras was fake and forged, therefore, the present petition filed by the Appellants is liable to be dismissed with heavy cost. He therefore, has supported the orders of the three fora below. 13. We have heard both the learned counsel at considerable length and have also perused the record with their able assistance. At this juncture, we find it pertinent to address a key aspect of the present Hs, which was touched upon in the Leave to Appeal granting Order of 20.02.2017, reproduced in para. 10, herein above. With regards to the onus of proving an allegedly fraudulent Power of Attorney, Article 119 of the Qanun-e-Shahadat Order, 1984, ("QSO") states: 119. Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations (a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft, to C. A must prove the admission. (b) B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it. (EMPHASIS ADDED)
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If the entirety of the case of the Respondents hinges on the fact that the allegedly fraudulent Power of Attorney is the root cause of the present Hs then the burden to prove such fraud, in our view, lies upon them. However, they have failed to do so, rather the veracity of the Power of Attorney was not even challenged at the evidence stage, when its authenticity was proved, as described in para. 6, herein above. 14. Furthermore, Article 95 of the QSO States: 95. Presumption as to powers-of-attorney: The Court shall presume that every document purporting to be a power-of -attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, Pakistan Consul or Vice Consul, or representative of the Federal Government, was so executed and authenticated. In Ziauddin Siddiqui[1] the Plaintiff sought specific performance, alleging that the Defendant, through her husband and attorney had agreed to sell a house in Karachi, for Rs. 75,000, with an advance payment of Rs. 5,000 and the balance was payable within 6 months at the time of execution and registration of the sale deed. The Defendant in the suit allegedly failed to complete the sale, having left for the United Kingdom. Once in the United Kingdom the Defendant sent a Power of Attorney to complete the sale, which was prima facie incomplete and subsequent attempts to rectify the error were also inadequate. The Plaintiff claimed to have received possession of the property in question and asserted readiness to fulfill their part of the contract, while the Defendants allegedly failed to do so. Specific performance was sought based on these grounds and the Defendant in the written statement submitted before the Court pleaded that she and her husband mostly resided in the United Kingdom and that neither she nor her husband entered into any agreement of sale with the Plaintiff, as the property in dispute was the only one that the Defendant owned in Pakistan and there was no need or requirement of its sale, and further that the documents relied upon by the Plaintiff were either forged or irrelevant. In its decision, the High Court opined: "It can hardly be disputed that a power of attorney in order to raise and sustain a presumption, under Article 95 of Qanun-e-Shahadat, 1984, of its execution before and authentication by inter alia, a Pakistan Consul or Vice Consul has to be so executed or authenticated. For a person executing such power in order to qualify for the referred presumption, under Pakistan Law, the exercise is required to have been gone into at the Pakistan Embassy in the United Kingdom. This, obviously, is not the position here and, therefore, no such presumption as referred arises. ... It would seem that where a purported power of attorney has actually been acted upon but does not qualify for the presumption under Article 95 of the Qanun-e-Shahadat 1984, those who seek to rely upon it or are, allegedly, effected thereby may resort to due modes of its proof, which may include examination of its attesting witnesses. None of this, however, would be necessary if the donor of the power or its executant himself or herself admits its execution. In such an event the principle underlying Article 81 of the Qanun-e-Shahadat, 1984, would become applicable and the admission of the executant shall be sufficient proof of execution as against himself or herself." (EMPHASIS ADDED) With the aforementioned facts and dicta of the High Court in mind, in the present case, the Power of Attorney was duly testified by the Consulate General of Pakistan in Malaysia and was then registered in Pakistan, therefore it qualifies for the presumption of execution and authentication available as per Article 95 of the QSO. With regard to the presumption attached to a Power of Attorney under Article 95 of the QSO, the Lahore High Court in Iqbal Ahmad Sabri[2] opined: "The presumption as to the authenticity and genuineness of power of attorney has been attached under the provisions of Article 95 of Qanun-e-Shahadat Order that every document purporting to be a power of attorney and to have been executed before the authenticated by a Notary Public or any Court, Judge, Magistrate, British Counsel or Vice-Counsel or representative of Federal
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Government, was so executed and authenticated. The authentication is not merely attestation, but something more. It means that the person authenticating has assumed himself of the identity of the person who has signed the instrument as well as the fact of execution. It is for this reason that a power of attorney bearing the authentication of notary public or an authority mentioned in Article 95 is taken as "sufficient", evidence of the execution of the instrument by the person, who appears to be the executant on face of it. This provision of Article 95 of Qanun-e-Shahadat Order, 1984, is mandatory and it is open to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled." (EMPHASIS ADDED) Furthermore, this Court in Shahnaz Akhtar[3] has held: "...Article 95 of the Qanun-e-Shahadat Order 1984 (Section 85 of Evidence Act) which relates to the presumption as to power of attorney whereby the Court has to presume that every document purporting to be a power of attorney and purported to have been executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Pakistan Council or Voice- Council or representative of Federal Government was so executed and authenticated. The documentary evidence, particularly for a registered document, enfolds a presumption of truth and genuineness and such presumption of truth is attached to the registered power of attorney which is admissible unless its genuineness is suspected and proved to be counterfeited or deceptive; its admissibility cannot be doubted to impede the agent from acting on behalf of principal unless the indenture of power of attorney is controverted and repudiated with satisfactory evidence." (EMPHASIS ADDED) Therefore, the Power of Attorney in favour of the Appellants enfolds a presumption of truth and genuineness and its admissibility cannot be doubted as there exists no proof on record pointing towards it being forged. 15. Having said that, without going into further factual controversies of the case, we confine ourselves to two primary issues involving the instant matter: 1) The limitation period prescribed for a declaratory suit; and if an extension in the limitation period is deemed to be extended with the preparation of every new jamabandi; 2) The fate of the concurrent findings by three fora below us. With regard to the first issue, it would be appropriate to first to delve upon Article 92 of the Limitation Act, which in our view was of relevance to the Respondents as opposed to Article 120 (which will be discussed in later paragraphs); Article 92 reads as follows:
Description of suitPeriod of limitationTime from which period begins to run 92.To declare the forgery of an instrument issued or registeredThree yearsWhen the issue or registration becomes known to the plaintiff
In this regard, it would be worthwhile to reproduce Muhammad Bashir[4], which is a judgement of the Lahore High Court: "While her witness Muhammad Ramzan P.W.3 admitted that possession was taken from him by the vendee about ten years back. The statement was recorded on 28-7-1992. The respondent while appearing as P.W.1 on 27-1-1992 admitted that her tenant informed her as to the sale about 10/12 years ago. 8. The sale-deed is dated 9-8-1982, therefore, if the aforementioned statements of plaintiff and D.W.3 are taken into consideration, it becomes clear that the plaintiff came to know of the sale-
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deed immediately after its registration. This is natural because the petitioner not only got the mutation entered and sanctioned but also took over the possession. This becomes further clear from the admission of the plaintiff that she moved revenue authorities requesting for not to sanction the mutation io favour of the petitioner, police and elders for settlement of this dispute. Above all she was also admitted having filed a suit earlier but her explanation is that she was tricked by a counsel. Be that as it may, one thing is clear that the sale was in her knowledge. Therefore, the case of the plaintiff would not be covered by Article 18 of the Limitation Act. If looked from this angle, there is nothing wrong with the finding recorded by the trial Court on this issue. The same reads as under:-- "ISSUE NO.2: In para. 6 of the plaint it is admitted that the plaintiff came to know about the forged transaction in July, 1984 but while appearing as P.W.1 she admitted that matter was brought to his knowledge by his tenant about 10/12 years prior to her statement which was recorded on 27-1-1992. If it is calculated from the date on which her statement was recorded her knowledge comes to be near about 1978 - 80 meaning thereby, that the plaintiff came to know about the impugned documents from the very beginning when sale-deed was executed and suit has been filed in January, 1987 after a delay of not less than 5 years. According to law of Limitation period prescribed for filing suit under section 39 of the Specific Relief Act is 3 years and suit is within four corners of said section. The present suit is therefore, badly barred by time as prescribed by law. Issue is, therefore decided against the plaintiff." 9. Now corning to the other aspect. The sale-deed is clearly voidable therefore, the cancellation was the only remedy and not suit for declaration. I j am fortified in my view by the judgments in the cases of Hamida Begum, Abdul Hamid and Mst. Hallma Bibi (supra). Now it is to be seen whether Article 91 of the Limitation Act as argued by the learned counsel for the petitioner would apply or Article 92. I am of the considered view that since the plaintiff has. sought cancellation of a registered document, therefore, it will be fairly and squarely case covered by Article 92 and not 91 of the Limitation Act, which is general in nature and residuary clause. The limitation would be governed by the premier relief claimed in the plaint and not by the incidental and secondary relief. The suit was, therefore, covered by Article 92 of the Limitation Act, which provides three years when the registration becomes known to the plaintiff. Therefore, suit was barred by limitation. 10. Now coming to the merits. The onus of issue No.1 was on the plaintiff, therefore, in order to succeed she was to prove that the alleged general power of attorney in favour of Riyasat All was a forged and fabricated document but she did not even attempt to get the same produced. In other words she failed to furnish the basis of her claim in the suit and discharge the onus. The non- production of the document was fatal to her claim. The Courts below held that the document was . in possession of defendant No.2, who was proceeded ex parte. This is no justification for its non- production because the plaintiff and the trial Court were not helpless in this behalf. The plaintiff could have moved the trial Court for an order to the said defendant to produce the document or summoned him for production of document and even the trial Court could have itself directed the said defendant to produce the general power of attorney. This becomes clear if the reference is made to section 30, Order XVI, Rules 1, 6 and 7, C.P.C. and in cash of failure the trial Court should have resorted to penal provisions compelling him to produce the document. This having not been done, it was legally not possible to hold that the alleged general power of attorney was a forged and fabricated document. This amounts to exercise of jurisdiction in vacuum, which is not permissible under law. It is relevant to note here that it is not the case of the plaintiff that the petitioner was a privy to the general power of attorney. On the other hand, she admitted that Riyasat Ali, the alleged General Attorney, is her son-in-law and nephew." 16. With the above dictum in mind which though is not binding upon us but is being reproduced above for the sake of brevity only, it would have served the Respondents interests better had they argued at the fora below that the limitation period of three years, provided as per Article 92 of the
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Limitation Act, was attracted to the present case, as they had just become aware of the apparent forgery of the Power of Attorney, which led to alleged illegal mutation entries, held by the Appellants. Nevertheless, even if the Respondents had taken this route, their claim would not succeed, as it is quite hard to digest that Gohar Shah, who passed away in the year 1993 did not challenge the alleged illegally mutation entries made in 1990 in his life time. 17. This brings us to the route that the Respondent did take, which is Article 120 of the Limitation Act; Article 120 of the Limitation Act reads:
Description of suitPeriod of limitationTime from which period begins to run 120.Suit for which no period of limitation is provided elsewhere in this schedule.Six yearsWhen the right to sue accrues
This Court in Kala[5], vis-a-vis limitation has opined: "15. There is yet another aspect of the case. It is in evidence that Sardar Muhammad predecessor- in-interest of the respondents died in 1987. He never challenged the allotment made in favour of Habib Shah vide the order dated 2-6-1965 and in favour of Khani Zaman on 13-9-1976 and surprisingly even the plaintiffs did not challenge those allotments till filing of the suit i.e. on 26-7-1995 almost after 30 years of allotment made in favour of Habib Shah and 19 years of the allotment made in favour of Khani Zaman. This contumacious conduct and laches would impinge on their bona fides. In Abdul Hag v. Surraya Begum (2002 SCMR 1330), the suit was dismissed because the plaintiffs had challenged the sanction of mutation after nine years of its sanction and the person from whom the respondents claimed inheritance had not challenged those mutations during his lifetime. The Court observed as under:- "11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The Appellants claimed the property through Atta Muhammad…
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