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Petitioner: Mst. Irshad Bibi VS Respondent: Ghulam Mustafa, etc.
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title: Mst. Irshad Bibi vs Ghulam Mustafa, etc. Case No.: C.R. No. 970 of 2012 Date of Judgment:2023-03-07 Reported As: PLJ 2023 Lahore 550 Result: Revision allowed
JUDGMENT
JUDGMENT Through this single judgment, I intend to decide above captioned Civil Revision as well as Civil Revision No. 791 of 2012 titled as "Ghulam Mustafa v. Irshad Bibi, etc" as parties in both the petitions as well as subject matter is same and both civil revisions are arising out of same judgments & decrees of Courts below. 2. Facts in brevity are that petitioner/plaintiff Mst. Irshad Bibi (hereinafter referred to as the petitioner) instituted a suit for declaration on 31.10.2007 against the Respondent No. 1 & Respondents No. 2-9, 10-A to 10-F/defendants (hereinafter referred to as the respondents) by contending therein that she is owner in possession of suit property measuring 96 Kanals & 08 Marlas and impugned sale Mutation No. 110 dated 15.09.1988 as well as subsequent entries in the revenue record made on the basis of said mutation are against the facts & law, void ab-intio and infective upon her rights; that she never appointed Muhammad Aslam as her general attorney for sale of her property and the proceedings conducted by him are forged, fictitious and based upon fraud; that she cancelled the general power of attorney being a forged document; that at the time of sanctioning of impugned mutation she was in Dar-ul-Aman, therefore, she did not appear before anyone; that neither she gave any statement nor received any consideration amount for sale of suit property; that all the proceedings with regard to sanctioning of impugned mutation are forged, fictitious, based upon fraud and result of collusiveness of revenue officials; that at the time of sanctioning of mutation Muhammad Aslam was shown to be her general attorney but she never appointed him as general attorney for the sale of suit property and if any such deed of attorney was shown to be executed, it is forged and fictitious and not applicable upon her, therefore, she is not bound to it; that impugned mutation was not attested by concerned Lumbardar; that
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impugned mutation was got sanctioned by Muhammad Aslam in favour of respondents by misusing power of attorney, which is against law & facts and liable to be set aside as neither general attorney can alienate the property of his principal to his legal heirs nor can alienate without her consent to any other; that impugned mutation is without consideration and result of impersonation; that petitioner neither appeared before any Revenue Officer or Patwari nor got recorded her statement; that petitioner is a Pardanasheen lady and according to the custom she did not use to go outside her house without the consent of her husband; that respondents had been giving share produce regularly to her at her house, so, she remained unaware about the impugned sale; that one week ago when respondents started claiming themselves owner of the suit property and also stopped to give share produce, then it came to her knowledge that suit property had been alienated in their favour; that respondents were asked time & again to get cancel the impugned mutation but they refused to do so, which constrained her to institute the suit. 3. On the other hand, Respondent No. 1 and Respondents No. 2 to 9 & 10-A to 10-F/defendants contested the suit by filing their separate written statements in contrast whereby they raised certain legal as well as factual objections such as petitioner has no cause of action; that suit is not maintainable in its present form; that they are bona-fide purchasers with consideration; that petitioner made sale bargain of the suit property through her general attorney namely Muhammad Aslam with respondents (Defendants No. 1 to 3 & predecessor of Defendants No. 4 to 10-F) and through Mutation No. 110 alienated the suit property to them; that after sale of the suit property, petitioner while admitting said power of attorney got it cancelled, therefore, she is estopped from her own words & conduct to institute the suit; that the suit is barred by time. While replying on facts, they pleaded that petitioner made sale bargain of land measuring 48 Kanals & 08 Marlas for a consideration of Rs. 3,75,000/-with Respondent No. 1/Defendant No. 1 through her general attorney Muhammad Aslam (her real brother) and received Rs. 3,75,000/-in presence of witnesses and similarly received Rs. 3,75,000/-from Defendants No. 2 & 3 and predecessor of Defendants No. 4 to 10; that before attestation of the mutation power of attorney was got verified; that general attorney paid the consideration amount to the petitioner; that petitioner through her general attorney appeared before concerned Patwari and Revenue Officer and the general attorney got attested the suit mutation and prayed for dismissal of the suit. 4. Owing to the divergent pleadings of the parties, learned Trial Court framed necessary issues and invited the parties to produce their respective evidence in support of their divergent stances. After recording evidence of the parties pro & contra, learned Trial Court dismissed the suit vide judgment & decree dated 03.05.2011. Feeling aggrieved, she preferred an appeal which was partially accepted vide judgment & decree dated 23.07.2012 and suit of the petitioner was decreed against Respondent No. 1 and oral sale Mutation No. 110 was cancelled to the extent of Respondent No. 1 regarding alienation of land measuring 48 Kanals 08 Marla, however, dismissed rest of her suit. Being dissatisfied, said. Ghulam Mustafa has filed Civil Revision No. 791 of 2012 for setting aside impugned judgment & decree of appellate Court dated 23.07.2012, whereas, petitioner (Irshad Bibi) has filed Civil Revision No. 970 of 2012 whereby she has prayed for decree of her suit in toto. 5. I have heard learned counsel for the parties at length and perused the record with their able assistance. 6. It evinces from the record 'that petitioner challenged the vires of Mutation No. 110 dated 15.09.1988 (Exh.P.1=Exh.D.1) which was entered on the basis of Rapat Roznamcha Waqiati No. 366 dated 3I.O8.1988 whereby her land measuring 96 Kanals & 08 Marlas was allegedly alienated through oral sale by her real brother/general attorney for a consideration of RS. 7,50,000/-to Respondent No. 1 namely Ghulam Mustafa (real son of the general attorney) and Muhammad Anwar, Sadiq Ali & Hashmat Ali (vendees). Petitioner also challenged the authority of general attorney regarding sale
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of the suit property. Although, general power of attorney No. 1949 dated 21.12.1981 (original as Exh.D.2, certified copy as Exh.D2/1) was got cancelled by petitioner through revocation deed No. 2586 dated 19.09.1988 (Exh.D.4) but before its cancellation, said general attorney had alienated the suit property to respondents. Stance of the respondents is that they are bona-fide purchasers for consideration and purchased the suit property from petitioner through her general attorney. 7. Suit property was sold by general attorney through oral sale mutation, therefore, in order to establish valid execution of the transaction, respondents have to prove not only the general power of attorney, the ingredients of sale but also the execution of the mutation through cogent and reliable evidence. In order to enforce a sale of immoveable property it was imperative for the vendees to establish that the transaction was undertaken with a title holder; there was an offer made which was accepted; the parties had no incapability; there was consensus at idem; that it was settled against valid consideration and that it was accompanied by the delivery of possession. Transaction involving property of illiterate women was to be treated at par with Pardanasheen lady and where a transaction involved anything against her apparent interest, it must be established that independent, impartial and objective advice was available to her and the nature, scope, implication and ramifications of the transaction entering into was fully explained to her and she understood the same. Attestation of mutation by itself does not furnish proof of sale and whenever any such transaction was questioned, the onus laid on the beneficiary to prove the transaction and every ingredient thereof as well as the document if executed for its acknowledgment. Mutation was always sanctioned through summary proceedings and to keep the record updated and for collection of revenue, such entries were made in the relevant register under Section 42 of the Land Revenue Act, 1967 and it had no presumption of correctness prior to its incorporation in the record of rights. However, entries in the mutation were admissible in evidence but the same were required to be proved independently by the persons relying upon it through affirmative evidence. Oral transaction reflecting therein did not necessarily establish title in favour of the beneficiary. Mutation could not by itself be considered a document of title and may have been attested as an acknowledgment of past transaction. 8. To reach a just conclusion, scanning of the whole evidence is necessary as conclusion drawn by both the Courts below are at variance. Guidance sought from the judgment of august Supreme Court of Pakistan whereby in a case titled "Mst. 'Azra Gulzar v. Muhammad Farooq and another (2022 SCMR 1625)" held as under: "In the case in hand, the fora below is at variance in their findings and in such like situation the High Court was supposed to give its findings after appraisal of the entire evidence." 9. Petitioner appeared in the witness box as P.W.1 and deposed that in lieu of her land situated at Noorpur Islamabad, suit property was allotted to her in Chak No. 7, Dunyapur which consisted upon 100 Kanals. Now the suit property remained 96 Kanal & 08 Marlas as 04 Kanals came in the road. She further deposed that her brother Muhammad Aslam who is father of Respondent No 1 (Ghulam Mustafa) used to look after the suit property. She maintained that property was being cultivated by the tenants and her brother used to give him share of produce in cash, sometimes to Rs. 10,000/- annually and sometimes Rs. 20,000/-. She also maintained that she did not give power of attorney to his brother with the mandate to sale the suit property rather the same was for the purpose to look after the suit property; after the death of her brother when she came on the suit property, then it came to her knowledge that the suit property had been sold. She deposed that mutation is based upon fraud as Muhammad Aslam general attorney neither obtained any advice/consent from her to sale the suit property nor paid her any consideration amount. She further stated that neither she gave any statement for sale of suit property nor put her thumb impression at any document. She also maintained that Muhammad Aslam wanted to marry her with his insane brother-in-law and when she refused to do so, he tortured her and she had life threats from him,
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therefore, she shifted to Dar-ul-Aman and due to that reason Aslam sold her land. She further deposed that she contracted second marriage with Raja Matloob. She deposed that respondents have no concern with the suit property. During cross-examination, she maintained that the power of attorney which was executed to look after the suit property was written with her consent. She admitted that she cancelled the power of attorney through revocation deed on 19.09.1988. She further deposed that 21/22 years ago she went to Dar-ul-Aman where she remained for 20/21 days and her second marriage was solemnized in Dar-ul-Aman. She also deposed that her brother Muhammad Aslam used to give her share amount by collecting the same from tenants. Despite lengthy cross-examination, respondents failed to bring anything favourable to them from the mouth of petitioner. Petitioner produced Malik, Ghulam Mustafa as P.W.2 in support of her claim. He supported her version and deposed that he never heard that petitioner sold her land. In documentary evidence she produced copy of impugned mutation as Exh.P-1. Perusal of said document it appears that concerned Patwari incorporated factum of oral sale through Rappat Roznamcha Waqiati No. 366 dated 31.08.1988. Through said mutation petitioner's land measuring 96-kanals 08-marlas was transferred by her general attorney Muhammad Aslam in favour of Hashmat Ali (640 shares), Muhammad Anwar and Sadiq Ali (320 shares) and Ghulam Mustafa (968 shares) for a consideration of Rs. 7,50,000/-. Said mutation was witnessed by Muhammad Ibrahim s/o Nanik and Liaqat Ali s/o Jalal Din. Statements of the parties were recorded on 08.09.1988 whereas mutation was sanctioned on 15.09.1988. Many cuttings were found on the said mutation. Copy of Mutation No. 111 dated 28.10.1988 was produced as Exh.P-2, whereby Muhammad Aslam general attorney of petitioner gifted his land measuring 100- kanals to his son namely Mujahid through oral Tamleek, copy of record of rights for the years 1986-87 as Exh.P-3, which shows ownership of petitioner upon the suit property, copy of record of rights for the years 2006-07 as Exh.P-4, copy of record of rights for the years 2006-07 as Exh.P-5. Perusal of said documents it appears that ownership with regard to suit- property was changed and alleged vendees stepped into the shoes of petitioner. Copy of Khasra Girdawari for Kharif 2008 was brought on redord as Exh.P-6. 10. In rebuttal, Defendant No: 1 appeared as DW-1, Defendant No. 6 as DW-2 and Defendant No. 2 as DW-3. They did not produce any independent witness in support of their stance. All the DWs deposed in the same line as narrated in their written statements. Respondent No. 1 while appearing as D.W.1 deposed that general attorney Muhammad Aslam is his father who was appointed by petitioner as his attorney to look after the property and to sell the same. He maintained that attorney delivered the consideration amount of Rs. 7,50,000/-to the petitioner and after getting the consideration amount she cancelled the power of attorney. During cross-examination, he admitted that mutation was sanctioned in the office of Patwari and at that time petitioner was not present. He further deposed that petitioner did not appear before any Officer. He admitted it correct that his Phuphi (petitioner) went to Dar-ul-Aman as she was angry with them; that she went to Dar-ul- Aman on 09.08.1988 and came back on 29.08.1988. During cross-examination, he deposed that petitioner demanded her property as we were not marrying her as per her choice, thereafter, voluntarily said that she demanded amount after selling the suit property. He admitted that when petitioner contracted marriage with Raja Matloob, at that time she was in Dar-ul-Aman. He also admitted that her Phuphi (petitioner) is illiterate. He maintained that women in their family observed Parda. He also admitted it correct that share produce was given by his father to petitioner, however, voluntarily said that it was given before sanctioning of impugned mutation. He also admitted it correct that petitioner did not give any permission for sanctioning of impugned mutation, however, she got executed power of attorney.
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Defendant No. 6 namely Bashir Ahmad appeared as D.W.2. During cross-examination, he deposed that petitioner is real sister of attorney Muhammad Aslam; he did not know when power of attorney was executed. He also admitted it correct that at the time of sanctioning of impugned mutation petitioner was not present and when the payment was made even then she was also not present. He also admitted it correct that petitioner did not receive any amount from him. Defendant No. 2 Muhammad Anwar appeared as D.W.3 and deposed that consideration amount was paid to Muhammad Aslam general attorney. During cross-examination, he deposed that Irshad Bibi was consulted while purchasing the suit property and said consultation was made in his presence and in presence of Hashmat Ali. They did not depose anything about their source of income as well as never explained that how they collected consideration amount and paid to petitioner. Respondents produced copy of Mutation No. 110 as Exh.D-1, original general power of attorney as Exh.D-2, certificate issued by the Sub-Registrar as Exh.D-3, copy of deed of revocation as Exh.D-4, copy of separate vandaas of respondents as Exh.D-5, copy of application submitted by petitioner for going to Dar-ul-Arran as Exh.D-6, copy of Nikahnama of petitioner with Muhammad Yousaf as Exh.D-7, copy of record of rights of Khewat No. 42 for the years 1987-88 as Exh.D-8, copy of record of rights of Khewat No. 55 for the years 2006-07 as Exh.D-9, copy of Khasra Girdawari as Exh.D-10, copy of death certificate of Muhammad Aslam as Exh.D-11, copy of Form 'Say' as Exh.D-12, copy of general power of attorney executed by Mst. Maqbool Jan as Exh.D-13, copy of Mutation No. 558 as Exh.D-14, copy of Mutation No. 289 as Exh.D-15, copy of Mutation No. 493 as Exh.D-16, copy of Mutation No. 559 as Exh.D-17, copy of Mutation No. 560 as Exh.D-18, copy of Mutation No. 211 as Exh.D-19, copy of Mutation No. 212 as Exh.D-20 and copy of Khasra Girdawri Kharif 2009 Kharif 2010 as Exh.D-21. 11. Admittedly, petitioner remained in Dar-ul-Aman in the month of August, 1988. She moved an application for sending her in Dar-ul-Aman on 09.08.1988 (Exh.D.6) whereby she maintained as under:
She got recorded her statement before the magistrate on 19.08.1988 wherein she stated as under.
Respondents produced attendance register of Dar-ul-Aman as Exh.D.7. In the said register, petitioner who was given number 36, it was written as under:
Perusal of impugned Mutation No. 110, it appears that it was entered on 31.08.1988 and sanctioned on 15.09.1988. Petitioner was admitted in Dar-ul-Aman on 09.08.1988 and was released on 29.08.1988 after her marriage with Raja Matloob. She left the house of her brothers due to dispute of her marriage as well as threat of her life and property as they were bent upon to deprive her from the property. Admittedly, those days disputes between the principal and attorney were at peak. In view of that it does not appeal to a prudent mind in presence of such a strained relations petitioner was consulted and got her consent qua selling the suit property and she was given consideration amount, 12. The suit property was alienated by general attorney on the basis of general power of attorney. It is settled principal of law that there must not be any uncertainty or vagueness in the power of attorney. Power of attorney should be construed strictly and only such powers qua the explicit object which were expressly and specifically mentioned in the power of attorney should be exercised by the agent as conceded to have been dedicated to him. The august Supreme Court of Pakistan in, its esteem judgment titled "Fida Muhammad versus Pir Muhammad Khan (Deceased) Through Legal Heirs And Others" (PLD 1985 Supreme Court 341) held as under:
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"It is wrong to assume that every "general" Power-of-Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object The draftsman must pay particular attention to such a clause if intended to be included in the Power-of-Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and or misrepresentation. The second aspect which needs caution on question of validity of acts under a Power-of-Attorney is that notwithstanding an authority to alienate principal's property, the Attorney is not absolved from his two essential obligations, amongst others firstly in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction." In the light of above referred judgment, when power of attorney was examined, it appears that principal gave authority as under:
From perusal of said general power of attorney, it appears that it did not contain a clear separate clause with regard to alienation/sale of the suit property. It evinces from the said deed of power of attorney that it was made to complete the allotment process and to look after the suit property. Power to alienate/sale was given in a general and vague manner, meaning thereby although authority of alienation was given but not specifically with express terms and by necessary implication. It is evident from record that Muhammad Aslam got the property rights of suit property in favour of petitioner through registered conveyance deed dated 20.01.1982 (Exh.D.3) by using said General power of attorney. Said attorney used the general power of attorney after seven years of its execution for transferring petitioner's property through impugned mutation without getting any fresh mandate from the principal. 13. Hon'ble Supreme Court of Pakistan held that the power of attorney must be strictly construed while observing in a case titled as "Muhammad Akhtar versus Mst. Manna and 3 others" (2001 SCMR 1700) as under: "It is well settled by now that the power of attorney must be strictly construed and it is necessary to show that on a fair construction of the whole instrument the authority in question may be found within the four corners of the instrument either in express terms or by necessary implication." And endorsed said dictum in "Muhammad Yasin and another versus Dost Muhammad through Legal Heirs and another" (PLD 2002 SC 71) in following terms: "It is also well known principle or law that all such instruments of power of attorney in pursuance whereof attorney is authorized to act on behalf of principal are to be construed strictly." 14. It is also evident from the perusal of said power of attorney that no authority for oral sale was given to the attorney. He was given only authority to execute registered sale deed as under:
The august Supreme Court of Pakistan in its judgment reported as "Imam Din and 4 others versus Bashir Ahmed and 10 others" (PLD 2005 SC 418) did not validate the oral sale on behalf of attorney despite the fact he was given authority to sell the property through registered sale deed and held that attorney was specifically authorized to sell the property through registered sale deed and in
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the light of strict construction of power of attorney, implied authority of oral sale could not be presumed and also observed as under: "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. In view of nature of authority, the power of attorney must be strictly construed and proved and further the object and scope of the power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule that before an act purported to be done under the…
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