2013 C L C 1004
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
Malak MUHAMMAD NOOR through Attorney ----Petitioner
Versus
Mst. BIBI RABIA and 2 others ----Respondents
Civil Revision No.390 of 2009, decided on 4th January, 2013.
(a) Specific Relief Act (I of 1877) ---
----S. 42 ---Civil Procedure Code (V of 1908), O.I, R.3 ---Suit for declaration ---Property owned
by two sisters in equal share ---Sale of such property by both sisters through their attorney on
basis of registered power of attorney ---Suit by one sister challenging sale of such property to
extent of her own share ---Validity ---Plaintiff -sister was not obliged to make her co -owner/sister
as party to suit.
(b) Specific Relief Act (I of 1877) ---
----S. 42 ---Qanun -e-Shahadat (10 of 1 984), Art.118 ---Suit for declaration ---Sale of suit property
on basis of registered power of attorney alleged by plaintiff to be fraudulent ---Burden of proof ---
Initial burden would lie on plaintiff to prove execution of power of attorney to be result of fr aud
and that suit sale made on its basis was of no legal effect ---Strong piece of evidence would be
required to rebut registered power of attorney Illustration.
(c) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revisional jurisdiction of High Court ---Scope ---Concurrent findings of fact could
not be disturbed in exercise of such jurisdiction.
Ajmal Khan Kasi for Petitioners.
Abdul Rauf Lehri for Respondent No.1.
Date of hearing: 7th June, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The Instant revision petition was filed by the
petitioner Malik Muhammad Noor, with a prayer that the judgment dated 21st February, 2009 of
Senior Civil Judge -II, Quetta, whereby the suit filed by respondent No.1 was decreed, and the
judgment dated 17th Ju ne, 2009 of Additional District Judge -III, Quetta, whereby his appeal was
declined, be set aside and the suit be dismissed. It was contended that both the courts below
failed to properly appreciate the evidence and the material on the record, and gave deci sion
without assigning any reason, which failed to fulfil the legal requirements. The petitioner further
contended that the suit was barred by time, but the issue to the effect was not decided properly.
Furthermore, this legal aspect of the case was overlo oked by the courts below that the
plaintiff/respondent No.1 was out of the possession, therefore, without seeking consequential
relief of possession, the suit for mere declaration was not maintainable. It was prayed that both
the judgments of the courts be low be set aside and the suit be dismissed being without merits.
2. The facts as appeared from the papers annexed with the petition were that respondent
No.1 being the plaintiff Bibi Rabia filed a suit with a prayer of declaration of her title in respect
of the suit property bearing Khasra No. 777, 778, Khewat and Khatooni Nos.42, 78, 79, 80
Tappa Shadenzai, Tehsil Saddar, District Quetta which was jointly owned by her and her sister
Bibi Hajira. It was her (plaintiff's) case that defendant No.1 Syed Haji Shah/present respondent
No.2 prepared a false general power of attorney, got it registered with Sub -Registrar in the year
1990,and on basis of the same by fraud sold out her share in the suit property to defendant
No.2/present petitioner, and also entered the same in his name in Revenue Record. It was her
case that the suit property was jointly owned by both the sisters, and she never executed general
power of attorney in favour of defendant No.1, who fraudulently prepared the same by affixing
her thumb -impression on it. She prayed for cancellation of the general power of attorney, and
also correction of the record of the Sub -Registrar with further prayer for correction of the
mutation entry by re -entering her name therein. The plaintiff also sought relief that the sale
transaction be declared as illegal, and without any consequence, as it was product of fraud.
3. The suit was only contested by the present petitioner being defendant No.2. Several legal
objections were raised on maintainability of the suit. While on merits it was contended that he
purchased the suit property from the plaintiff and her sister Bibi Hajira on basis of general power
of attorney given in favour of Syed Haji Shah/Defendant No.1. The trial court framed issues on
10th February, 2007 . Four witnesses appeared on behalf of the plaintiff, while she got recorded
her statement through her attorney. In rebuttal two witnesses appeared and the petitioner being
defendant No.2 got recorded his statement through attorney. The trial court through judgment
dated 21st February, 2009 arrived to the conclusion that the plaintiff was succeeded to establish
her case, thereby decreed the suit in terms of the relief claimed. Being aggrieved the petitioner
preferred an appeal, which was decided by the Addi tional District Judge -III, Quetta, vide
judgment dated 17th June, 2009 and arrived at the same conclusion. Still feeling aggrieved the
instant petition had been filed. During pendency of this petition respondent No.2 Syed Haji Shah
never appeared, while on ly respondent No.1 contested the proceedings.
3. Learned counsel for the petitioner stated that the trial court failed to understand the nature
of the case. Further, the burden of issue No.3 was wrongly placed on the petitioner, which in fact
was to be e stablished by respondent No.1/plaintiff. The learned counsel further contended that
the sale transaction was made in the year 1990 on the basis of a power of attorney. Further, the
plaintiff was within knowledge of the transaction, but failed to approach t he court prior to the
year 2006, which made her claim and the suit time -barred. But the courts below failed to
consider this legal aspect of the case, and decided the issue in contravention of relevant law. It
was further contended that the admitted positi on that the possession of the suit property was with
the petitioner since the date of its purchase, was ignored, therefore, the legal proposition that a
suit for mere declaration was not maintainable without asking for relief of possession was
remained to be decided by the trial court. The learned counsel was of the contention that the trial
Court failed to discuss the evidence produced by the plaintiff, rather the evidence of the
petitioner/defendant No.2 was discussed and evaluated, which was an error, bu t it was repeated
by the appellate court. Further, the burden was wrongly shifted; rather the plaintiff had to
establish her cases through her own evidence. It was further contended that through the same sale
transaction the share of second sister was also sold, who never appeared nor contested the same,
which also establish the genuineness of the sale transaction.
4. In reply thereof the learned counsel for respondent No.1 only contended that the courts
below properly appreciated the material on the reco rd, and on basis thereof arrived to the correct
findings. Further the concurrent findings of the courts below cannot be disturbed by this court
while exercising its revisional jurisdiction. It was further stated that the original power of
attorney was not produced in the evidence, while the photocopy was not admissible.
5. From the pleadings of the parties certain facts appeared as admitted that the suit property
was owned by the two sisters namely Bibi Rabia/present respondent No.1 and Bibi Hajira, in
equal shares. While respondent No.1 claimed her share from the suit property, but she was not
obliged to make her sister party to the suit. Further, the suit property was sold to the present
petitioner by respondent No.2 Syed Haji Shah on basis of a general power of attorney issued in
his (respondent No.2) favour by both the sisters. This general power of attorney was admittedly
executed in year 1990, and placed on record as Exh.D/2. Furthermore, the alleged sale
transaction was an admitted fact that on basis of this power of attorney, effected between Syed
Haji Shah, the attorney, and the petitioner in year 1990. Further, on basis of this sale change in
entries were made in the revenue record and the property was transferred from the names of the
two sisters to the name of the petitioner. The relevant mutation was effected on 29th December,
1990. But, Bibi Rabia the plaintiff/respondent No.1 appeared before the court with a plea of
fraud in the year 2006, with a prayer for correction of the revenue entry and c ancellation of the
general power of attorney. The present petitioner being the purchaser and recorded owner having
possession of the suit property since the date of purchase, contested the proceedings. Respondent
No.2 Syed Haji Shah who was the main charac ter of this transaction, remained absent and never
appeared neither before the courts below nor before this court.
6. The perusal of the judgments of the courts below revealed that both the courts while
giving decision on Issues Nos.1, 2 and 3 placed bur den on the present petitioner. It was held that
the allegation of fraud and mala fide intention though raised by the plaintiff but defendant No.2
present petitioner, was required to establish that the general power of attorney was properly
executed and not a result of fraud. Both the courts below made same mistake, while placing the
burden of proof on the present petitioner/defendant No.2. The initial burden was on the
plaintiff/respondent No.1 to establish her case, apart from the evidence of the defendant . Though
there was assertion of fraud and misrepresentation in the plaint, that too to the extent of
defendant No.1. the alleged attorney, but the requirements as provided in Order VI, Rule 4, Civil
Procedure Code (C.P.C.) were missing from the plaint. The requisite details were not disclosed.
Further, the initial burden was on the plaintiff to establish that the execution of power of attorney
was a result of fraud and the sale transaction made on basis of it was of no legal effect.
7. The plaintiffs witn esses (P.W.) Nos.1 and 2 gave statements not based on their personal
knowledge; further, they only deposed about the ownership of the plaintiff in respect of the suit -
land, which was otherwise not a denied fact. As far as P.W. -3 Muhammad Hanif was concerne d,
he only appeared to cover the period of limitation, and stated of nothing material. P.W. -4 Abdul
Hameed for the very first time disclosed the relationship between Mst. Rabia and defendant No.1
Syed Haji Shah being his maternal aunt. He (witness) further stated that he (defendant No.1) sold
out property of the plaintiff along with share of his mother, and this sale was made on basis of a
forged power of attorney. The attorney of the plaintiff, while recording his statement deposed
that defendant No.1, his cousin, in connivance with the Sub -Registrar prepared a power of
attorney with forged thumb -impression of his mother (plaintiff) and sold out the property.
8. The questioned power of attorney, photocopy whereof on record as Exh.D/2, reveals that
it was executed on 12th December, 1990 and registered on 17th December, 1990. Further, it was
a joint power of attorney issued by both the sisters Bibi Rabia and Bibi Hajira in favour of Syed
Haji Shah son of Syed Mohsin Ali. Both the sisters thereby empowered th e attorney not only to
look after and maintain the suit property, but also empowered him to sale, mortgage, gift,
exchange, partition etc the property, and also to get prepared the documents to the effect and
made relevant entries in the Revenue Record.
9. This document was asserted to be product of fraud and cancellation thereof was claimed.
Therefore, some specific evidence was required in the matter. The plaintiff during course only
produced oral evidence that too unspecific. The best evidence in the c ircumstances would be the
opinion of an Expert. But during the course of trial nor during the course of appeal any request
was made to the effect, that the thumb impression present on the questioned power of attorney be
sent for an expert's opinion. The po wer of attorney admittedly a registered document, and in
presence of an established principle that sanctity of law is attached with the authenticity of a
registered document, which need strong piece of evidence to rebut the same. But in present case
there was no such evidence. Coupled with the fact that the person against whom the alleged act
of forgery was made, was not a stranger to the plaintiff, rather he was son of his real sister, who
was also co -owner of the property. But the plaint failed to disclos e the circumstances which
resulted in this forgery. It was not defendant No.2/present petitioner, who was required to
establish the genuineness of the power of attorney, rather it was the plaintiff, who had to
discharge the initial burden. But, there was c omplete failure on her part, as no specific evidence
was produced to the effect.
10. As far as the knowledge about the alleged sale transaction was concerned, it was not a
denied fact on the part of the plaintiff, that the suit property was in cultivatin g possession of the
petitioner since years. The plaintiff's witnesses also admitted the fact. But there was no
explanation that why during all these years the plaintiff remained silent, and decided to approach
the court in year 2006 with a plea of fraud af ter lapse of nearly sixteen (16) years, that too
without any explanation. This fact made the suit barred by time, but both the courts below
decided the issue otherwise, thereby committed an error.
11. As far as the legal proposition that in exercise of t he revisional jurisdiction the concurrent
findings of facts cannot be disturbed, is concerned, there is no cavil to this proposition. But in
present case both the courts below recorded findings in contravention of the law and also in
misappreciation of fac ts, which need reappraisal of the matter by this court. The
plaintiff/respondent No.1 on the basis of the evidence produced failed to establish the fraud as
asserted, further specific evidence of such standard was not produced to rebut the registered
docum ent, which was to be believed unless proved otherwise. Further she was in knowledge of
possession of the petitioner, but she remained silent and never questioned his possession during a
period of 16 years, which showed her implied consent in the transactio n. Furthermore, the act of
fraud nowhere claimed against the petitioner, and he being a purchaser, purchased the suit
property on basis of a registered document cannot be deprived of his right on basis of such
unspecific evidence. A lawful and valuable rig ht accrued in favour of the petitioner, which
cannot be disturbed. The plaintiff/respondent No.1 failed to discharge the burden, consequent
thereof she was not entitled for the relief claimed. Both the courts below made error while
deciding the case contra ry.
In view of the above discussion, the revision petition is hereby accepted, the impugned
judgment dated 21st February, 2009 of Senior Civil Judge -II, Quetta and judgment dated 17th
June, 2009 of Additional District Judge -III, Quetta are hereby set as ide. Resultantly the suit filed
by the respondent No.1/plaitnff is hereby dismissed.
There shall be no orders as to cost.
SAK/28/Q Revision accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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