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Petitioner: MUHAMMAD SHAFI VS Respondent: MUHAMMAD IQBALHonorable Justice Ch. Muhammad TariqZafar Iqbal Mirza,Mushtaq Ahmad Mohal
2011 M L D 857
2011 M L D 857
[Lahore]
Before Ch. Muhammad Tariq, J
MUHAMMAD SHAFI---Petitioner
Versus
MUHAMMAD IQBAL and others---Respondents
Civil Revisions Nos.269 and 270 of 2006, heard on 19th October, 2010.
Specific Relief Act (I of 1877)---
----Ss. 8 & 42---Suit for declaration and possession on the ground that one of the defendants by playing fraud and misrepresentation had got executed general power of attorney in his favour on the pretext that he wanted to obtain loan for some business but by playing fraud he sold the disputed property---Defendants contested suit and filed written statements---Trial Court decreed suit of the plaintiff-Appellate Court, on appeals, reversed findings of the Trial Court and dismissed the suit---Validity---One of defendants' witnesses admitted during cross-examination that the plaintiff was a blind man and had no son, daughter or wife while the other witness stated that the power of attorney was executed without recording the statement of the plaintiff because the plaintiff never appeared before the Sub-Registrar and the power of attorney was executed just after making -inquiry from the other defendant---Such was a case of fraud, concealment of facts and misrepresentation---High Court allowed petitions and set aside the judgments and decrees passed by Appellate Court and restored the one passed by Trial Court.
Zafar Iqbal Mirza for Petitioner.
Mushtaq Ahmad Mohal for Respondents.
Date of hearing: 19th October, 2010.
JUDGMENT
CH. MUHAMMAD TARIQ J.---This single judgment shall dispose of Civil Revisions Nos.269 and 270 of 2006 as common questions of law and facts are involved in these petitions which have been directed against judgment and decree dated 13-10-2005 passed by Mian Muhammad Anwar, the then learned Additional District Judge Daska who accepted the appeal of the respondents-defendants and set aside the judgment and decree dated 14-5-2004 passed by Mr. Ahmed Mujahid Sherdil Cheema, Iearned Civil Judge Daska.
2. The facts giving rise to the filing of these petitions are that the petitioner-plaintiff filed a suit for declaration that he is the owner of the land measuring 12 Kanal, 12 Marla fully described in para 1 of the plaint. The petitioner-plaintiff is blind and aged about 70-75 years. The respondents Arshad Hussain and Khalid Hussain son of Khushi are his nephews. On 9-1-1998 Arshad Hussain respondent by playing fraud and misrepresentation got executed a general power of attorney in his name on the pretext that he wants to obtain loan for some business but thereafter, the said Arshad Hussain out of total land measuring 12 kanal, 12 marla sold land 1 kanals, 12 marla to Khalid Hussain against consideration of Rs.20,000 vide Mutation No.509 dated 23-6-1998 and land measuring 11 kanal in favour of Muhammad Iqbal against a consideration of Rs,500,000 vide Mutation No.508 dated 23-6-1998. As soon as the petitioner-plaintiff came to know about the fraud and sale of his land, he filed a suit for declaration and possession. The respondents were summoned by the learned trial Court who resisted the suit by filing written statement. Out of divergent pleadings of the parties, the learned trial court after framing of issues and recording of oral as well as documentary evidence, decreed the suit of the petitioner-plaintiff on 14-5-2004. Both the respondents filed two separate appeals, which were allowed on 13-10-2005 by the learned Additional District Judge Daska. Hence these civil revisions.
3. Learned counsel for the petitioner inter alia contends that the petitioner is an old man who was blind at: the time of execution of general power of attorney. The respondents Arshad Hussain and Khalid Hussain are the real nephews of the petitioner who took the advantage of tender age of the petitioner, fraudulently got executed general power of attorney and alienated the land of the petitioners. He avers that the learned trial court has rightly decreed the suit of the petitioners while the learned first appellate court has failed to appreciate the evidence available on record and has wrongly set aside the judgment and decree passed by the learned trial court just on the basis of surmises and conjectures, therefore, the civil revisions be allowed, the impugned judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored.
4. Conversely, learned counsel for the respondents has vehemently controverted these civil revisions and has argued that the petitioner executed the general power of attorney with his free will and thereafter, with his permission, the suit-land was sold in favour of Muhammad Iqbal and Khalid Hussain against consideration which amount was duly paid to the petitioner. Learned counsel further argues that the petitioner was a healthy man and was not blind at the time of the execution of the general power of attorney. Learned counsel avers that the impugned judgment and decree passed by the first appellate court is well-reasoned. Khalid Hussain and Muhammad Iqbal are the bona fide purchasers against consideration. The possession of the suit property is with the respondents. The signatures on the general power of attorney are admitted, therefore, the civil revisions being without any merit are liable' to be dismissed.
5. Arguments advanced by both the learned counsel for the parties have been heard and the record available oft file has been perused with their able assistance.
6. There is no cavil that the petitioner Muhammad Shafi was owner of the suit land measuring 12 kanals 12 marlas and respondents. Arshad Hussain and Khalid Hussain are the Teal nephews of Muhammad Shafi, petitioner. The petitioner is not only an old blind man but also has no son, daughter or wife and, thus, was at the mercy of his nephews. The petitioner-plaintiff Muhammad Shafi himself appeared as P.W. and made statement in corroboration with the contents of the plaint and specifically deposed that Exh.P1, the general power of attorney, was obtained by Arshad Hussain respondent on the pretext that he will obtain a loan from the concerned quarters. The petitioner-plaintiff has categorically stated that he has not appointed Aishad Hussain as his general attorney. Neither he appeared before Sub-Registrar nor executed Exh. P1 nor received consideration price. This fact is further confirmed by the statement of DW-1 Iftikhar Hussain Sindhu Advocate who has admitted duringcross-examination that the petitioner is a blind man. It is also admitted that the petitioner has no son, daughter or wife. The statement of. DW-4 Sajid Iqbal Patwari is very important who has replied during cross-examination that the power of attorney was executed without recording the statement of Muhammad Shafi because Muhammad Shafi petitioner never appeared before Sub-Registrar and the power of attorney was executed just after making inquiry from defendant No.4.
7. The upshot of the whole discussion is that it is a case of fraud, concealment of relevant facts and misrepresentation. The learned trial court has rightly decreed the suit of the petitioner-plaintiff while the learned first appellate court has failed to appreciate the evidence available on record. Consequently, both the civil revisions in hand are allowed. the impugned judgment and decree dated 13-10-2005 passed by Mian Muhammad Anwar, the then learned Additional District Judge Daska is set aside and the judgment and decree dated 14-5-2004 passed by Mr. Ahmed Mujahid Sherdil Cheema, learned Civil Judge Daska is restored.
M.U.Y./ M-10/L Revision accepted.