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Petitioner: SULEMAN ALI VS Respondent: MAQBOOL HUSSAIN through Legal Heirs and 2 others
Court Name: Lahore High Court Judge(s): Muhammad Zafar Yasin, Chaudhry Ijaz Ahmed Title: SULEMAN ALI vs MAQBOOL HUSSAIN through Legal Heirs and 2 others Case No.: Regular First Appeals Nos. 210 and 211 of 1999 Date of Judgment:2000-05-05 Reported As: 2000 YLR 1983 Result: Appeals allowed
JUDGMENT
JUDGMENT ' CH. IJAZ AHMAD, J.---We intend to decide R.F.A. No, 210 of 1999 and R.F.A. No, 211, filed by Salman Ali against the judgment and decrees, dated 31-3-1999 passed by Civil Judge, Lahore by one consolidated judgment as both the appeals arise out of one impugned judgment. 2. The brief facts out of which the present appeals arise are that Mst. Umat Ullah Sadiq Ali owned land measuring 71 Kanals, 18 Marlas; she gifted the same to her son Salman Ali through registered gift dated 26-3-1986. In this respect, Mutation No,21893 was also sanctioned on 27-5-1986 by the Revenue Authorities. Salman Ali leased out the land in question to Maqbool Hussain son of Haider Ali for one year from 30th of June, 1995 to 30th of June, 1996. Salman Ali, his mother and sister sold their other land measuring 27 Kanals, 14 Marlas known as Begum Park through Muhammad Ayub to different persons. Maqsood Ahmad respondent allegedly got executed general power of attorney in his favour from Salman Ali, appellant on 17-4-1996 and registered on 13-5-1996. Maqsood Ahmad, on the basis of the aforesaid general power of attorney, sold the land in question i,e, 71 Kanals and 18 Marlas to his real brother Muhammad Ayub through registered sale-deed, dated 30- 5-1996 for a consideration of Rs,5,90,000. The appellant Salman Ali filed suit for declaration with consequential relief for cancellation of general power of attorney and sale-deed before the Senior Civil Judge, Lahore on 12-6-1996. Maqsood Ahmad and Muhammad Ayub also filed a suit for declaration with permanent injunction against Salman Ali and the S.H.O. On 3-9-1996 before the Senior Civil Judge, Lahore. The learned Senior Civil Judge, Lahore, consolidated both the suits vide order, dated 5-3-1998. The respective parties filed written statements and controverted the allegations levelled in the plaints. Out of the pleadings of the parties, following issues were framed by the trial Court:-
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(1) Whether the suit filed by Salman Ali for declaration is false, frivolous, mala fide: If so, its effect? OPD (2) Whether the plaintiff is estopped to file his suit for declaration due to his act and conduct? OPD (3) Whether the plaintiff has not come to the Court with clean hands? If so, its effect? OPD (4) Whether the plaintiff Salman Ali has no cause of action against the defendants? OPD (5) Whether the defendants are entitled for the recovery of special costs under section 35-A, C.P.C.? OPD (6) Whether the plaintiff is owner in possession of the property in dispute and is entitled for declaration with consequential relief and cancellation of Sale Deed No, 3693, Bahi N,o. 1, Jild No, 1073, dated 30-5-1996 and Power of Attorney No, 2762 dated 13-5-1996 on the ground mentioned in the plaint? OPP (7) Whether the suit of the defendant Maqsood Ahmad is not maintainable in its present form? OPP (8) Whether the plaint of Maqsood Ahmad, defendant is liable' to be rejected under Order VII, Rule 11, C .P.0 .? OPP (9) Whether the present suit of Maqsood Ahmad etc. For declaration is liable to be stayed under section 10, C.P.C.? OPP (10) Whether the suit of Maqsood Ahmad has not been properly valued? If so, what is proper valuation? OPP (11) Whether the defendants Maqsood Ahmad and Muhammad Ayub are entitled to get decree for declaration in respect of land measuring 71 Kanals, 18 Marlas in respect of disputed land on the ground that they have purchased the same after the payment of Rs, 36,06,000 on the basis of the sale-deed? OPD (12) Relief. ' The parties led oral as well as documentary evidence. During the pendency of the suit, Maqbool Hussain died, hence, his L.Rs, were impleaded. ' The trial Court dismissed the suit of Salman Ali appellant and decreed the suit of respondents Maqsood Ahmad and Muhammad Ayub by one consolidated judgment and decree, dated 31-3- 1999, hence the present two appeals arise out of the aforesaid judgment and decrees. 3. The learned counsel for the appellant submits that Issues Nos. 6 and 11 are material issues and on the basis of which, the suit of the appellant was dismissed and the suit of the respondents was decreed. The appellant produced as many as two witnesses in support of Issues Nos. 6 and 11 namely P.W.1 Hasina Ali, P.W.2 Mst. Umat Ullah Sadiq Ali and himself appeared as P.W.3. Appellant Salman Ali produced Exh. P.1 to P.61 to show different sale-deeds registered qua land measuring 27 Kanals and 9 Marlas through the agency of Muhammad Ayub respondent and also produced Exhs. P.62 to Exh. P.76, whereas, respondents produced D.W.1 Shahid Azim to prove sale of stamp paper. To Muhammad Ayub for execution of general power of attorney by Salman Ali in favour of Maqsood Ahmad and to prove the contents of general power of attorney (Exh. D.2), produced Muhammad Sadiq, D.W.2 marginal witness of Exh. D.2 general power of attorney and also produced D.W.3 Liaqat Ali who supported the respondent's case but he is not a witness of the execution of Exh. D.2; Maqsood Ahmad, D.W.4 holder of general power of attorney' of Salman Ali and D.W.5 Muhammad Ayub real brother of respondent Maqsood Ahmad in whose favor sale-deed has been registered and D.W.6 Muhammad Idris, Handwriting Expert. (It is pertinent to mention that the report of handwriting expert has not been believed by the trial Court as is evident from para. 23 of the impugned, judgment). The respondents also produced documents in support of their case i,e, Exh.D.1 chart showing the alleged payment of Rs, 36,06,000 made from 15-10-1992 to 3-4-1995 to the appellant by Muhammad Ayub; Exh. D.2 general power of attorney; Exh. D.3 sale-deed in favour of Muhammad Ayub; Exh. D.4 decision on bail application and Exh. D.5 report of the handwriting expert. Learned counsel for the appellant submits that all the sale-deeds qua Begum Park Exh. P.1
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to Exh. P.61 were attested by Muhammad Ayub Khan except Exh. P.37, sale deed executed by Salman Ali in favour of Muhammad Ayub. P.43 sale-deed executed by Salman Ali in favour of Muhammad Jamil and Khaliq Hussain. P.62 sale-deed executed by Salman Ali in favour of Maqbool Hussain. He further submits that two agreements were executed by Salman Ali in favour of Maqbool Hussain on 15-10-1992 and 23-10-1992 respectively for sale of land measuring 27 Kanals, 9 Marlas known as Begum Park. The contents of the agreements reveal that price initially was fixed at Rs, 1,50,000 per Kanal which was subsequently reduced on the request of Maqbool Hussain from Rs,1,50,000 to Rs, 1,25,000 per Kanal. He further submits that Exh. D/1 is a document which reveals that sale price was paid by. Muhammad Ayub to the appellant as well as to the co-owners on different dates regarding Begum Park Land which had been sold through Muhammad Ayub from time to time; he submits that this document itself reveals that the word "{{URDU TEXT}}" 99 Kanals, 7 Marlas were written by different ink and different handwriting. He further submits that in case terms of the aforesaid agreements are read together with Exh. D/1, then. Amount received by the appellant is qua 27 Kanals, 9 Mamas regarding Begum Park and not the land in question measuring 71 Kanals 18 Marlas. He further submits that sale-deeds Exhs. P.16, P.35, P.36, P.48 to P.51 and Exhs. P.53 to P.61 clearly contained the word Begum Park Scheme whereas sale-deeds Exhs. P.1 to P.15, P.17 to P.34, P.37 to P.47 and P.52 though do not contain the word Begum Park Scheme but the boundary mentioned in the sale deeds relates to Begum Park Scheme qua the land measuring 27 Kanals, 9 Marlas. He further submits that Exh.P.62 reveals that garden i,e, (suit land 71 Kanals - 18 Marlas) of the appellant was in possession of Maqbool Ahmad from 30-6-1995 to 30-6-1996 on lease. Similarly lease deed was also executed by the appellant qua the garden in favour of Maqbool Ahmad for the year commencing from January, 1984 to December, 1985. He further submits that on the basis of aforesaid documents, allegedly, the general power of attorney has been fraudulently executed from Salman Ali appellant in favour of Maqsood Ahmad on 17-4-1996 registered on 13-5-1996 through local commission namely Mushtaq Ahmad Bhatti, Advocate who executed the same on 8-5-1996 at 6-00 p.m. Exh. D.2 general power of attorney was attested by Ch.Muhammad Sadiq. The respondents produced Ch. Muhammad Sadiq D.W.2 and Shahid Azeem D.W.1 to prove that general power of attorney was executed by Salman Ali in favour of Maqsood Ahmad with his free consent. On the basis of the aforesaid general power of attorney, Maqsood Ahmad sold the land in question to his real brother Muhammad Ayub vide registered sale-deed, dated 30-5-1996 which was witnessed by Abdul Majeed and Malik Muhammad Nazir who were not produced in the witness box for a consideration of Rs, 5,90,000. He further submits that execution of documents i,e, general power of attorney and sale-deed was denied by the appellant in his suit as well as in the written statement filed in the suit filed by Muhammad Ayub and also as P.W.3, thus, onus automatically shifted to the respondents to prove that the document Exh.D.2 was executed validly in accordance with law. In support of his contention, he relied upon the judgments reported as Abdul Majeed etc. v. Muhammad Suleman etc. (1999 SCMR 1245) and Sahib Bibi v. Lal (1992 CLC 807). He further submits that the respondents withheld best evidence of Mushtaq Ahmad Bhatti, Advocate, therefore, the respondents failed to prove general power of attorney which was executed in favour of Maqsood Ahmad. He further submits that D.W.5 Muhammad Ayub purchased the stamp paper without any authority and this fact was admitted by D.W.5 in his cross- examination; further submits that Exh. D.2 general power of attorney executed by Salman Ali in favour of Maqsood Ahmad reveals that the same is. Not genuine on the basis of the reasons given below:--- ' That the stamp paper was purchased by Muhammad Ayub D.W.5 who had no authority to purchase the same; ' Muhammad Ayub who is beneficiary, identified Salman Ali, alleged executant of general power of attorney, in favour of Maqsood Ahmad, D .W .4;
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' Mushtaq Ahmad Bhatti, Advocate was appointed to execute the Exh. D.2 as local commission but he was not produced in the witness-box; ' that general power of attorney was attested only by one witness namely Ch. Muhammad Sadiq, the name of this witness also has been written subsequently as ink and handwriting of the main body of the general power of attorney and of this witness are different; ' that Ch. Muhammad Sadiq signed the Exh. D.2 as marginal witness and subsequently also fixed thumb-impression. This fact was also admitted by him that he only signed the document but subsequently has also fixed the thumb-impression; this fact was also admitted by him in his cross- examination; ' that second page of the impugned general power of attorney also reveals that further identification is also made by Muhammad Ayub the beneficiary and it appears that his name has also been written with different handwriting; ' that Salman Ali appellant did not file any application before Registrar/Sub-Registrar under section 33 of the Registration Act for appointment of local commission that he was not in a position to appear before him on account of unavoidable circumstances for registration of General Power of Attorney by him in favour of Maqsood Ahmad; ' that nobody has filed any application before the Registrar/Sub-Registrar for non-appearance of the executant, Salman Ali, appellant at the time of registration of the general power of attorney, therefore, same registered by Registrar/Sub-Registrar through local commission is in violation of the aforesaid provisions of Registration Act; ' that Ch. Muhammad Sadiq D.W.2 also did not belong to the area where the general power of attorney in question was executed; similarly Shahid Azeem, writer of the general power of attorney did not belong to that area; ' that no respectable of the locality came forward to attest the execution of general power of attorney, therefore, the same was executed by Maqsood Ahmad fraudulently but the trial Court did not consider this aspect of the case and did not appreciate the evidence on record in true perspective; that the respondents alleged that general power of attorney was executed by Salman Ali appellant qua the land in question against receipt of total consideration of Rs,36,06,000 as is evident from para. 2 of the written statement and para. 3 on merits as well as in para. 1 of their own plaint. The respondents filed application for amendment of the issues already framed by the trial Court under Order 14, Rule 5, C.P.C. Claiming therein that Salman Ali executed 'general power of attorney in favour of Maqsood Ahmad against the aforesaid consideration regarding the land in question. The application was dismissed by the trial Court vide order dated 27-4-1996 on the ground that the respondents have to prove consideration paid to the appellant for the suit land; ' that Ch. Muhammad Sadiq D.W.2 is an interested witness who has taken 8/10 Marla plot from Muhammad Ayub as is evident from his statement; similarly Shahid Azeem D.W.1 is also an interested witness who has attested fifty-six sale-deeds executed by Salman Ali through Muhammad Ayub. Out of the sale-deeds which are Exhs. P.1 to P.61, Shahid Azeem attested all the sale-deeds except Exhs. P.4, 35, 43, 45 to 52; that the respondents have failed to prove that general power of attorney Exh. D.2 was executed by Salman Ali appellant in favour of Maqsood Ahmad D.W.4 as the statements of Shahid Azeem and Muhammad Sadiq contradicted with each other on material points; similarly respondents failed to prove consideration passed on to the appellant as the statement of Liaqat Ali is not worth consideration and even otherwise, payment of any consideration has not at all been mentioned in the body of general power of attorney Exh. D.2. Further submits that statements of the D.Ws. Particularly Maqsood Ahmad D.W.4 and. Muhammad Ayub D.W.5 are contradicting with each other on material points but the trial Court did not consider this aspect of the case at all. He further submits that it was the duty and obligation of Maqsood Ahmad to have active consultation with the principal if the agent wanted to sell the land in
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question on the basis of the power of attorney to Muhammad Ayub, his real brother and that too for a nominal consideration. This fact alone is sufficient to prove that the documents in question are result of fraud and misrepresentation. ' In support of his contention, the learned counsel for the appellant has placed reliance upon the judgments reported as PLD 1985 SC 341 (Fida Hussain v. Pir Muhammad), 1992 SCMR 1488 (Malik Riaz v. Mian Inayat Ullah and others), 1997 SCMR 1811; (Haji Faqir Muhammad v. Pir Muhammad) PLD 1989 Lah. 440 (Wali Muhammad v. Muhammad Ibrahim) and 1994 CLC 1690 (Muhammad Siddique v. Shagufta Bano). ' He further submits that documents Exh. D.2 general power of attorney creates financial liability therefore, the same must have been attested by two male witnesses and the same had be proved by producing at least two male witnesses as required by Article 17 read with Article 79 of Qanun- eShahadat Order, 1984. He further urged that the respondents did not produce evidence to prove the documents as required by the law. In the present case, Mushtaq Ahmad Bhatti was the best witness as the general power of attorney was attested by him as a local commission but he has not been produced by the respondents. He further submits that the trial Court decided the case in violation of the basic principles and shifted the onus on the appellant to disprove the document i,e, the general power of attorney in question. The appellant had denied the execution of the document, then; onus shifted automatically to respondents; they failed to discharge the liability by not producing the best evidence. He further submits that Exh. D.1 copy of the register account clearly reveals that the entire land mentioned therein was sold for a consideration of Rs, 34,31,250 and if the price of land is calculated at the rate of Rs,1,25,000 per Kanal, it proves the case of the appellant that it was the sale price of area measuring 27 Kanals and 10 Marlas and not for an area mentioned in the document i,e, measuring 99 Kanals, 7 Marlas. He further submits that if Rs, 1,75,000 which the respondent Muhammad Ayub had to give for purchase of car are added, the aforesaid amount comes to Rs, 36,06,000, therefore, the evidence produced by the appellant dislodged/destroyed the case of the defendant/respondents. He further submits that Salman Ali appellant, his mother and sister sold the land situated in Begum Park through registered sale- deeds Exhs. P.1 to P.61 without executing any general power of attorney in favour of any person. He further submits that the land situated in Begum Park was sold at the rate of Rs, 10,000 per Marla from the years 1992 to 1995, therefore, the stand taken by the respondents that the land measuring 71 Kanals, 18 Marlas adjacent to the land of Begum Park Scheme was sold by the appellant to the respondents for a consideration of Rs, 36,06,000 in the year 1996 is not believable as it would amount to selling the adjacent land in the year 1996 at the rate of about Rs,2,500 per Marla. This fact also belies the case of the respondents and this fact was not considered by the trial Court at the time of deciding the suit. He summed up his argument by stating that D.W.6 Muhammad Idris Finger Expert was not rightly believed by the trial Court as he is interested witness and has no knowledge over the subject.. 4. On the other hand, the learned counsel for the respondents argued that the appellant/plaintiff received Rs, 36,06,000 vide Exh. D.1 qua the land in question: The Exh. D.1 was executed by mother of Salman partly and partly by appellant Salman and this fact was admitted by the mother of appellant while appearing as P.W.; further submits that trial Court has given finding of fact on Issues Nos. 6 and 11 against the appellant after proper appreciation of evidence while the learned counsel of the appellant has failed to point out any material piece of evidence which was misread or not read by the trial Court; further submits that the trial Court decided the case in accordance with law and the learned counsel of the appellant failed to point out any principle violated by the trial Court at the time of the deciding the cases; further submits that the alleged agreement Exh. P.62 was not executed by Maqbool Hussain in favour of Salman appellant as is evident from the back of the agreement that the stamp paper was purchased by Suleman himself for executing an
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affidavit, therefore, the contention and stand of the appellant that late Maqbool Hussain, father of the respondents, has got executed power of attorney Exh. D.2 through fraudulent means is not borne out from the evidence on record. Further submits that Maqbool Hussain denied this fact by filing written statement in the suit and Maqbool Hussain also admitted in his written statement that he paid Rs,36,06,000 to the appellant, his mother and sister through Exh. D/1; further submits that on account of the aforesaid consideration, general power of attorney was executed by Salman in favour of Maqsood Ahmad, respondent, who sold the land in question to Muhammad Ayub. Muhammad Ayub also filed suit for declaration against the appellant in which appellant Salman Ali filed written statement and has taken the plea that garden was given on lease to Maqbool Hussain on yearly basis through Exh. P.62 which was not taken by Salman Ali in his own suit, therefore, this plea is afterthought; further submits that the appellant did not allege the specific plea of fraud in his suit as well as in written statement filed by him in the suit of Muhammad Ayub and Maqsood Ahmad; further submits that appellant allegedly executed two agreements qua the land measuring 27 Kanals, 14 Marlas known a Begum Park Scheme in the year 1992 and late Maqbool Hussain had paid aforesaid amount qua the sale transaction of the aforesaid land but the appellant has failed to bring on record or exhibit agreements allegedly executed between the mother of appellant and Maqbool Hussain, dated 15-10-1992 and 23-10-1992 through primary or secondary evidence; further submits that the appellant mentioned in para. 3 of the plaint that he came to know through known person that the respondents have executed general power of attorney fraudulently but he neither mentioned the name of the said known person in the plaint nor in the oral evidence the name was disclosed nor said person was produced in evidence, from whom, the appellant came to know that aforesaid general power of attorney was executed, therefore, the appellant failed to prove non-execution of said general power of attorney and withheld the best evidence; further submits that the respondents denied the factum of execution of agreements by Maqbool Hussain, dated 15-10-1992 and 23-10-1992 in their amended written statement but the appellant failed to file any rejoinder or produce any evidence to believe the stand of respondents taken by them in their amended written statement; further submits that amended written statement was filed by respondents with the permission of the Court and that order of the trial Court attained finality as the appellant has never challenged the same before this Court; further submits that it was the duty and obligation of the appellant to prove that fraud was committed with him but he failed to discharge his onus. In support of his contentions, the learned counsel for the respondents has placed reliance upon the judgments reported as PLD 1969 SC 167 (Ahsan Ali and others v. District Judge and others) and 1993 SCMR 618 (Muhammad Younus Khan's case); further submits that P.W.1 and P.W.2 in their statements did not utter a single word about Exh. D/1 that it was obtained by respondents by fraud; further submits that appellant's mother and sister owned different land from the land in question. The Exh. D/1 clearly proves the consideration received by the appellant, his mother and sister qua the land measuring 71 Kanals, 18 Marlas sold by the appellant to the respondents for the aforesaid consideration; further submits that if Exh. D/1 and general power of attorney Exh. D/2 are read together, it would clearly reveal that general power of attorney is in the nature of irrevocable general power of attorney and the appellant was left with no authority to revoke the same by virtue of section 202 of the Contract Act; further submits that the appellant/plaintiff had to prove that he received consideration qua other lands i,e, land measuring 27 Kanals 14 Marlas and not the land mentioned in Exh.D/1. Further submits that P.W.1 to P.W.3 had sold their land through Exhs. P.1 to P.61 either in their personal capacity or through power of attorney and had received the consideration directly. Further submits that in case the contention of the learned counsel of the appellant is accepted in to then the area sold by the appellant through Exhs. P.1 to P.61 comes to about 23 Kanals, 12 Marlas whereas appellant claimed that they sold 27 Kanals, 14 Marlas. This fact demolished the case of the appellant, whereas, the
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appellant alleged that they received the consideration and sold the land 27 Kanals, 14 Marlas at the rate of Rs,1,25,000 per Kanal and the total consideration/amount comes to Rs, 31,13,000 for registered sale-deed Exhs. P.1 to P.61 of the area measuring 23 Kanals and the appellant failed to explain that the remaining land measuring 4 Kanals was sold to other persons through any other registered sale-deed, therefore, this fact is sufficient to belie the case of the appellant; further submits that Ekh. D/2 general power of attorney executed by appellant in favour of Maqsood Ahmad was duly proved by producing D.W.1 Shahid Azim scribe and D.W.2 Ch. Muhammad Sadiq, one of the marginal witnesses; the respondents proved Exh. D/2 in accordance with law and provisions of Qanun-e-Shahadat Order, 1984; further submits that general power of attorney does not involve any financial transaction, therefore, requirements of Article 17 read with Article 79 of the Qanun-e-Shahahat Order, 1984 are not attracted; further submits that Mr. Mushtaq Ahmad Bhatti, Advocate has attested the general power of attorney under the authority of Sub-Registrar, therefore, non-production of Mr. Mushtaq Ahmad Bhatti, Advocate is not fatal to the case of the…
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