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Petitioner: Muhammad Umar (DECEASED) through Legal Heirs VS Respondent: Sikandar Ali and 2 JUDGMENT
Court Name: Sindh High Court Judge(s): Zulfiqar Ali Sangi Title:Muhammad Umar (DECEASED) through Legal Heirs vs Sikandar Ali and 2
JUDGMENT
Reported As: 2023 CLC 284 Result: Appeal dismissed Judgment JUDGMENT ZULFIQAR ALI SANGI, J. Through instant 2nd civil appeal, the appellants/defendants called in question the impugned judgment and decree dated 02.05.2018, passed by the Court of Ist Additional District Judge, Mehar in Civil Appeal No.25/2016 (Muhammad Umar and another v. Sikandar Ali Soomro and others), whereby the appellate court has dismissed the said civil appeal and maintained the judgment and decree dated 16.03.2016, passed by the Court of Senior Civil Judge, K.N Shah, in F.C Suit No. 42/2016 (Sikandar Ali v. Muhammad Umar and others), wherein the said F.C Suit filed by the respondent No.1/plaintiff Sikandar Ali Soomro was decreed. 2. Brief facts of the F.C Suit are that the respondent No.1/plaintiff Sikandar Ali filed the F.C suit before the court of Senior Civil Judge, K.N. Shah for declaration, cancellation of power of attorney in favour of appellant/defendant No.1, cancellation of registered entry in Form-II and permanent injunction against the appellants/defendants Mohammad Umar and another stating that he and appellant/defendant No.01 are real brothers while appellant/defendant No.02 is his nephew and son of appellant/defendant No.01. The respondent No.1/plaintiff and appellant/defendant No.01 both have jointly purchased plot measuring 2200 sq. feet through registered sale deed having the following boundaries. BOUNDARIES. NorthStreet SouthHouse of Mohammad Qasim EastHouse of Ali Mohammad
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WestHouse of Niaz Ali.
3. It was further averred in the plaint that the respondent No.1/plaintiff and appellant/defendant No.01 have also purchased another plot measuring 3000 sq. feet and they both were joint owners of the same plot, thereafter, the respondent No.1/plaintiff and appellant/defendant No.01 wanted to obtain loan from the Finance Corporation therefore, respondent No.1/plaintiff gave power of attorney in respect of plot measuring 2200 sq. feet therefore, they obtained loan from the concerned corporation. The respondent No. 1/plaintiff has further averred in the plaint that in the month, of May 2003, he revoked his power of attorney in respect of appellant/defendant No.01, therefore, the appellant/defendant No.01 was no more attorney of the respondent No.1/plaintiff. The respondent No.1/plaintiff recently approached the appellant/defendant No.01 and asked him to demarcate both the plots including the residential house but the appellant/defendant No.01 refused to do so on the contrary he declared that the respondent No.1/plaintiff has no right and title over the plot measuring 2200 sq. ft. as he has already sold out the same to the appellant No.2/defendant No.2 on the basis of power of attorney in the year 2009, thereafter, the respondent No.1/plaintiff rushed towards the Revenue officials defendants for cancellation of entry in Form-II but the Mukhtiarkar Revenue K.N. Shah refused, hence, the respondent No.1/plaintiff finding no other way filed the F.C suit with the following prayers: a. That this court may be pleased to declare that the respondent No. 1 /plaintiff is equally share holder in the both plots and the act of appellants/defendants Nos. 1 and 02 refused his share from both the plots is illegal, null, void and contrary to law and against natural justice. b. That this court may kindly be pleased to declare that the appellant/defendant was no more attorney of respondent No. 1 /plaintiff after May 2003 and the transaction made by appellant/defendant No.01 in favour of the appellant/defendant No.02 on the basis of such power of attorney is illegal and without any substance which is liable to be cancelled. c. That this court may be pleased to direct the Mukhtiarkar land revenue K.N. Shah to cancel the entry in form-II in respect of appellant/defendant No.02 and restore the previous entry. d. To direct the Mukhtiarkar land Revenue K.N. Shah to demarcate both the plots including residential house and hand over the share of the respondent No.1/plaintiff from both plots to him. e. That this court may be pleased to restrain the Mukhtiarkar revenue and sub-registrar K.N. Shah not to execute the registered sale deed regarding the both plots other than in due course of law. f. That the costs of the suit be borne by the appellant/defendants. g. That any other relief which this court may deem fit and proper be awarded to the respondent No. 1/plaintiff under the circumstances. 4. After institution of the suit, the summons were issued to the appellants/defendants. They appeared and contested the suit by filing written statement. 5. The contesting appellants/defendants in their respective written statement denied the averments in the plaint plaint and stated that he was laboring in Saudi Arabia and used to send the amount to the respondent No.1/plaintiff, at that time the respondent No.1/plaintiff was jobless having no source of income, therefore, all the expenses were being provided by the appellants/defendants to him. The appellant / defendant No.1 came back from Saudi Arabia and
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demanded the purchased property from the respondent No.1/plaintiff, who showed him registered sale deed in favour of respondent No.1/plaintiff as well as in the name of the appellants/defendants, on seeing it he went into shock and asked the respondent No.1/plaintiff as to why he had shown his name in the said registered sale deed, to which respondent No.1/plaintiff showed his readiness to waive of his share, thereafter, the respondent No.1/plaintiff executed the power of attorney in favour of the appellant/defendant No.01. The appellant/defendant obtained loan from the bank on same landed property by mortgaging it till today the appellant/defendant is also paying installments of said loan. The appellant/defendant has further submitted that the power of attorney was not revoked by the respondent No.1/plaintiff, hence, the same is still intact in the name of appellant/defendant No.01, he thereafter sold out the suit plot to his son the appellant/defendant No.02 through registered sale deed, the respondent No.1/plaintiff has no concern at all to the suit plot, the suit of the respondent No.1/plaintiff is not maintainable according to law and undervalued, barred by section 42 of Specific Relief Act and prayed for the dismissal of the suit, while the remaining defendants failed to file their written statement and the suit proceeded accordingly. 6. From the pleadings of the parties, trial Court has framed the following issues on 27-02-2015. 1. Whether, the respondent No.1/plaintiff and appellant/defendant No.01 jointly purchased two plots and constructed one residential house over the plot measuring 3000 sq. ft.? 2. Whether, the respondent No.1/plaintiff had given his power of attorney to the appellant/defendant No.01 for only obtaining loan from Finance Corporation and it was revoked by the respondent No.1/plaintiff in year 2003 since then the appellant/defendant is not the attorney of respondent No. 1/plaintiff? 3. Whether, the suit property is the property of appellant/defendant No.01 as it was purchased by the respondent No. 1/plaintiff on behalf of appellant/defendant No.01 as the appellant/defendant No.01 was residing in Saudi Arabia? 4. Whether, the appellant No.1/defendant No.01 had sold out the suit plot to appellant No.1/defendant No.02 on the basis of revoked power of attorney, therefore, the registered sale deed in favour of appellant No.2/defendant No.02 is null and void? 5. Whether, the suit of the respondent No. 1 /plaintiff is not maintainable and respondent No. 1/plaintiff has no cause of action to file the present suit? 6. Whether, the respondent No. 1/plaintiff is entitled for the relief as claimed? 7. What should the decree be? 7. The parties adduced their evidence for and against their respective pleadings and claims. At the conclusion of the trial and after hearing the parties counsel, the learned trial Court decreed the suit of the respondent No.1/plaintiff vide judgment/decree dated 16.03.2016. 8. Being aggrieved and dissatisfied with the said judgment and decree, the appellants/defendants filed appeal being Civil Appeal No.25/2016 before the Court of District Judge, Dadu, which was ultimately decided by the learned Additional District Judge, Mehar vide impugned judgment/decree dated 02.05.2018, whereby the said appeal was dismissed; and, the aforesaid judgment and decree, passed by the learned trial Court was maintained. 9. The appellants/defendants being dis-satisfied with the said judgment and decree, passed by the learned appellate court, have preferred the instant 2nd Civil Appeal. 10. It is inter alia contended by the learned counsel for the appellants/defendants that both the courts below have erred in law as impugned judgments/decrees are not proper and the same are result of misreading and non-reading of evidence brought on record; that execution of power of attorney was not disputed and admitted during cross examination by Sikandar Ali (plaintiff), who also admitted that defendant No.1 has resided mostly at Saudi Arabia and further there is no existence of original publication, though in cross-examination challenged that Photostat copy
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submitted by him of particular item is not published and by challenging the same burden shifted to the shoulders of plaintiff Sikandar Ali to produce original cutting of newspaper or to examine publisher in this respect, so as to prove the revocation of particular registered power of attorney, in which he failed; that plea of respondent No.1/plaintiff in respect of revoking of power of attorney is based upon so-called item alleged to have published in a newspaper, which is not brought on record (original) nor appears date of publication on it, even no notice has been served, though General Power of Attorney was registered in the year 1984, whereas suit has been filed in 2014 which was hopelessly time barred; that, both Courts below have failed to consider that property in question was purchased before joining service of Sikandar Ali who was jobless, having no source of income, whereas appellant No.01 left Pakistan in order to earn for his family including appellant/defendant No.01 and reside at Saudi Arabia, as such without reason cancellation of power of attorney merits no consideration; that, dispute is in between two real brothers and registered deed was not executed in the year 1984, due to relationship 'and trusting upon younger brother and continue such a registered power of attorney a number of years and after marriage having his own children, with mala fide intention filed suit after 30 years; that, admittedly appellant No.01 used to reside at Saudi Arabia for the purpose of earning, whereas execution of Registered Power of Attorney is not denied nor disputed by the respondent No.1/plaintiff/nor a genuine and sufficient grounds have been disclosed for so-called revoke of Power of Attorney. Learned counsel further contended that it is a settled law that respondent No.1/plaintiff has to prove his own case and he cannot be benefited on the weakness of other side if any but he failed to prove, whereas appellants/defendants have established their case, execution of Power of Attorney in their favour, hence suit was to be dismissed, but the same was decreed and maintained by the Appellate Court without touching evidence available on record; that admittedly suit filed in the year 2014 and after lapse of 11 years so-called revocation of power of attorney is alleged and admission on his part that he did not issue even a legal notice and remained mum for more than 11 years, hence presumption can be taken against the respondent No.1/plaintiff. Learned counsel further contended that true copy of Registered Sale Deed, so also original record which respondent No.1 /plaintiff wanted to get cancelled not produced, whereas photo-stat copy cannot be exhibited in evidence, accordance to Qanun-e-Shahadat; that, observation recorded by the appellate court that power of attorney can be revoked at any time by the principle at his will, but registered document cannot be revoked only on the basis of publication of item, as legal requirements are to be fulfilled and there is no provision under the law that after number of years while transferring the property attorney (owner of half of the property) must sought approval from the principle. Learned counsel for the appellants has further contended that no fraud is committed by the appellants, on the contrary mala fide is on the part of younger brother (respondent No.1/plaintiff), and transaction made on the basis of such power of attorney is valid and in accordance with the law, as such impugned judgments/decrees of courts below cannot be sustained and liable to be set-aside and on the basis of impugned Judgments/Decrees respondents have created unnecessary litigation and harassm ent and trying for execution and implementation of impugned decrees, which will change the entire situation at the site. He further submits that particular issue in respect of Limitation was not framed, though admittedly suit filed by the plaintiff after 30 years and the same was decreed. In the end he has prayed that suit filed by the respondent No. 1/plaintiff Sikandar Ali may be dismissed with heavy costs. In support of his case, he has relied upon the cases reported as Wazeer Ahmed v. Abdul Ghani and 7 others (2010 MLD 1167), Ramzan and 2 others v. Lora and another (2007 MLD 957) and Irshad-ullah v. Muhammad Arshad (2005 CLC 1779). 11. On the other hand, learned counsel for respondent No.1/plaintiff has submitted that appellant/defendant No.1 in his written statement has not denied about registered sale deed in his name and in the name of respondent No. 1/plaintiff and he has admitted that he obtained the loan
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from bank on same landed property and mortgaged the land and till yet he is also making installments of the said loan. In para No.02 of written statement he has clearly admitted that he along with Respondent No.1/plaintiff purchased 800 sq: yds jointly and he has admitted the execution of power of attorney executed in his name by Respondent No.1/plaintiff; that the Appellant/defendantNo.1 himself made application before I-Judicial Magistrate K.N Shah and he clearly admitted the share of the Respondent No.1/plaintiff being equal share holders in the suit property. The witness of the Respondent No.1/plaintiff namely Muhammad Ibrahim has also deposed that the respondent No.1/plaintiff and the appellant/defendant No.1 have jointly purchased both the plots. In examination in chief appellant/defendant No.1 stated that he was doing labour in Saudi Arabia and used to send money through his maternal Uncle Muhammad Qasim, and from said amount/ earning he alleged to have purchased the property in question, but he has failed to examine Muhammad Qasim. In cross-examination the appellant/defendant No.1 has also admitted that the said registered sale deed dated 27.11.1983 stands in his favour and in favour of Respondent No.1 /plaintiff. In cross-examination he has also admitted that another plot admeasuring an area about 0800 sq: feet has been mutated in the revenue record in his and Respondent No.1/plaintiff's name. The official witness of Defendants/Appellants namely Mushtaq Ahmed (Supervising Tapedar) replied in cross-examination that the Respondent No. 1/plaintiff has moved an application to Mukhtiarkar K.N Shah in order to inform about the revocation of the power of attorney and he had made such report to Mukhtiarkar not to issue sale certificate. The defendant/appellant No.1 has illegally sold out 1110 Sq: Ft to his son appellant No.2 on the basis of revoked power of attorney under registered sale deed dated: 31.08. 2009 and the revenue record Form-II was also illegally mutated in his favour, which act is illegal and this fact came in knowledge of respondent No.1/plaintiff in the year 2014. The official witness of appellants/ defendants namely Mushtaq Ahmed being Supervising Tapedar of Taluka K.N Shah admitted in his cross examination that they are not competent to issue sale certificate if the property is mortgaged with any department. He admitted that the Respondent No.1/plaintiff had moved an application to Mukhtiarkar K.N Shah in order to inform him about the revocation of power of attorney and he had made report to Mukhtiarkar not to issue sale certificate. He has also produced the said record of K.N Shah Town, report No.2102 K.N Shah dated: 25.11.2015 and revenue record form-II Ex: 25/A to 25/C. The appellant/defendant No.1 has clearly admitted that property in question is still mortgaged and 50% loan is still outstanding, hence sale of property without redemption of mortgage is illegal. It is further submitted that private faisla was also held in year 2011 and both plots were partitioned, which faisla has not been denied by appellant/defendant No. 1. It is further submitted that agent cannot sell the property of principal on the basis of power of attorney to his son or any other close relative without prior special permission of principal, if it is done it is sheer violation of section 211 R/W section 215 of Contract Act, and such act has been held illegal and invalid by Hon'ble Supreme Court of Pakistan. It is further submitted that power of attorney can stand cancelled at the moment it is communicated to the attorney through any mode. Lastly, he prayed that the 2nd appeal filed by the appellants may be dismissed. He has relied upon the cases of Fida Muhammad v. Pir Muhammad Khan (Deceased) through legal heirs and others (PLD 1985 SC 341), Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494), Muhammad Yasin and another v. Dost Muhammad through legal heirs and another (PLD 2002 SC 71), Maqsood Ahmed and others v. Salmon Ali (PLD 2003 SC 31), Muhammad Taj v. Arshad Mehmood and 3 others (2009 SCMR 114), Muhammad Ali Razi Khan v. Muhatnmad Ali Zaki Khan and others (2007 MLD 54) and Muhammad Iftikhar v. Nazakat Ali (2010 SCMR 1868). 12. Learned Additional Advocate General Sindh, argued that the dispute is in between the private parties on a private property and the government has no interest in the proceedings.
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13. I have heard arguments of learned counsel for the parties and have gone through the material available on the record. 14. The learned trial court while deciding the issues framed before it discussed the entire evidence produced by both the parties. In respect of the issue No.1 before the trial court, the respondent No.1 /plaintiff brought on record an application filed by the appellant/defendant No.1 before 1st Civil Judge and Judicial Magistrate, K.N.Shah at Ex.17/C, in which the appellant/defendant No.1 admitted the share of the respondent/plaintiff in the subject property. The respondent No.1/plaintiff also produced his witness Muhammad Ibrahim, who supported the version of respondent/plaintiff by specifically stating that the respondent No.1/plaintiff and appellant/defendant No.1 have jointly purchased both the plots. The appellant/defendant No.1 was also examined to rebut the evidence on issue but his version in respect of his claim that he, having sent money to his maternal uncle, namely, Muhammad Qasim from Saudi Arabia, the plot was purchased through plaintiff being his brother as his sons were minors and that on his return he asked his brother to give registered sale deed of the property and after going through said registered sale deeds he came to know that said property was purchased in his favour so also favour of the respondent No. 1/plaintiff, he (appellant/defendant no.1) did not examine the material witness whom the money was being sent i.e his uncle Muhammad Qasim. Surprisingly money was being sent to uncle while the property was allowed to be purchased by brother i.e plaintiff/respondent. Further, during the cross-examination applicant/defendant admitted that another plot admeasuring 0800 Sq. Ft was also purchased and mutated in the revenue record in his name and in the name of respondent No.1/plaintiff and such status thereof was not challenged which, otherwise, amounts to bring claim of appellant/defendant that respondent No.1 / plaintiff was incapable to purchase anything. I would also add that even after knowing that allegedly respondent No. 1/plaintiff played a fraud upon him yet he (appellant/defendant) while allowing the respondent No. 1/plaintiff to enjoy right of ownership, dressed himself up as attorney who, legally, can't be equated with that of owner. After the discussion of the evidence on the issue No.1 by the trial court, the trial court rightly held that the property in question was purchased by appellant/defendant No.1 and the respondent/plaintiff both were jointly the owners of their equal share. 15. Turning to the issue No.2, the trial court has also discussed the evidence produced by both the parties. However, the burden to prove was held on the shoulders of respondent No.1/plaintiff. Since execution of the power of attorney was never disputed but purpose thereof was claimed differently. Per respondent / plaintiff, the purpose of execution of power of attorney was for obtaining loan and not in recognition of ownership of appellant/defendant, as claimed by appellant/defendant. The respondent / plaintiff claimed that the loan was obtained jointly and they were returning the same jointly and 50% loan was outstanding against them. He further deposed that he revoked the power of attorney which was in favour of appellant/defendant No.1 on 20th May 2003 through daily Kawish news-paper. Thereafter he informed it to official, defendants by producing said news-paper cutting which was filed being photo stat copy. His witness Mohammad Ibrahim has also deposed same facts in this regard. On the other hand the appellant/defendant No.1 while owning his appointment as attorney of the respondent No.1/plaintiff denied about the revocation of it and further deposed in this connection that when he came to know about the joint purchase in favour, of him and the respondent No.1/plaintiff being co-sharer, thereafter he became annoyed with the respondent No.1/plaintiff and then respondent No. 1/plaintiff became ready to execute power of attorney in his favour by mentioning therein authority to sell or gift out the said share of his property to any-one. Here, it is also worth noting that it is not matter of dispute that on basis of such power of attorney the loan was obtained hence issue No.2 to extent of its first part stood proved because if the appellant / defendant had obtained the power of attorney in recognition of his status as owner he (appellant/defendant) would not have used such attorney for obtaining
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loan in names of himself and that of respondent / plaintiff. The other part of issue No.2 relates to revocation of power of attorney. For this, respective parties led their evidences. The witness brought by the appellant/defendant No.1, namely, Mohammad Yousif while acknowledging power of attorney denied that same was revoked. The appellant/defendant No.1 's witness 03, namely, Mushtaq Ahmed being supervising Tapedar of Taluka K.N. Shah admitted in his cross examination that respondent No.1/plaintiff has moved an application in this regard to Mukhtiarkar K.N. Shah, who called the report and submitted such report to Mukhtiarkar K.N. Shah. Per, the trial Court, the respondent No.1/plaintiff has failed to produce such record during his evidence therefore, the issue was answered in negative. I am not convinced with such conclusion of the trial Court because it is an admitted position that power of attorney does not contain any clause that it was executed for Consideration or in recognition of right of ownership of appellant / defendant therefore, power of attorney can well be revoked. Reference is made to the case of Rasool Bukhsh and another v. Muhammad Ramzan 2007 SCMR 85, wherein it is held as:- It is also a settled principle of law that power of attorney does not contain any clause that the same was executed for consideration, therefore, contention of the learned counsel of the petitioner that power of attorney could not be revoked by the principle has no force in view of section 202 of Contract Act, 1872. When first part of issue No.2 stood proved as well that the respondent / plaintiff did act for revocation and even made intimation / information thereof hence the Courts below are not right in answering the issue no.2 in negation particularly when the will carry effect that appellant /defendant till date continues to be attorney of the respondent / plaintiff. Therefore, findings on the issue No.2 are hereby reversed and the issue is answered accordingly. 16. As regards to the issue No.3, it is material to…
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