2014 M L D 911
[Balochistan]
Before Muhammad Ejaz Swati and Muhammad Noor Meskanzai, JJ
ZAFAR IQBAL ---Appellant
Versus
MOULA DAD and 3 others ---Respondents
R.F.A. No.12 of 2012, decided on 3rd March, 2014.
Qanun- e-Shahadat (10 of 1984) ---
----Arts. 75 & 76---Specific Relief Act (I of 1877), Ss. 42 & 39---Suit for declaration,
cancellation of registered power of attorney, sale -deed and mutation entries ---Secondary
evidence, production of ---Conditions ---Evidentiary value of copy of document w ithout its
production in original in the court ---Scope ---Contention of plaintiff was that he was owner of
suit property and registered power of attorney executed in favour of defendant was forged one
whereas defendant contended that he was bona fide purcha ser of the same ---Suit was dismissed
on the ground that plaintiff had not sought relief for cancellation of second power of attorney
mentioned in the written statement---Validity ---Court had power to grant an effective or ancillary
relief even if not prayed for---Sale deed and mutation entries through which suit property was
transferred in favour of plaintiff were not disputed between the parties ---Plaintiff was owner of
suit land and defendant had failed to substantiate his claim with regard to purchase of the same
through reliable evidence ---Power of attorney purportedly executed by the plaintiff in favour of
defendant was doubtful document as no record of the same was produced---No proof was
produced with regard to burning of record of said power of attor ney---Copy of said general
power of attorney had been exhibited in evidence without permission of the court to lead
secondary evidence and same could not be considered---Neither marginal witness of said power
of attorney nor its executant was produced in t he court ---Nothing was on record to suggest that
original power of attorney was lost or was not available with the defendant ---Production of copy
of document would not be sufficient to entitle any party to the suit to produce secondary
evidence unless conditions provided in Art.76 of Qanun- e-Shahadat, 1984 stood satisfied---Said
power of attorney was not only inadmissible in evidence but same did not confer any right, title
or interest in favour of defendant ---No presumption of correctness or its due execut ion could be
drawn with regard to said power of attorney ---Defendant neither pleaded loss or destruction of
original power of attorney nor adopted the recourse of Arts. 75 & 76 of Qanun -e-Shahadat,
1984---Defendant had failed to prove the genuineness or authenticity of general power of
attorney ---Findings of Trial Court were result of misappropriation, mis -reading and non -reading
of evidence and same were based on inadmissible evidence produced by the defendant ---
Registered sale- deed and mutation entries in favour of defendant had no legal effect and same
were liable to be cancelled ---Plaintiff was entitled for the relief as claimed for ---Impugned
judgment and decree were not sustainable in the eye of law which were set aside and suit was
decreed ---Appeal wa s accepted in circumstances.
Muhammad Nawaz Khan v. Muhammad Jaffar Khan, 2010 SCMR 984; Amirzada Khan
and others v. Ahmed Noor and others PLD 2003 SC 410; Syed Mansoro Ahmed v. Mst.
Maqbool Begum and others 1990 SCMR 1259 and Anwar Ahmed v. Mst. Nafis Bano through
Legal heirs 2005 SCMR 152 rel.
Naseebullah for Appellant.
Naseer Ahmed Bangulzai, Additional A.G. for Respondents.
Ameer Hamza for Respondents Nos.1 and 2.
Date of hearing: 18th December, 2013.
JUDGMENT
MUHAMMAD EJAZ SWATI, J.---This appeal is directed against the judgment dated
29th December, 2011 (hereinafter the "impugned judgment") passed by the learned Civil Judge -
I, Quetta (hereinafter the trial Court"), whereby the suit filed by the appellant (plaintiff) was
dismissed.
2. The facts of the present appeal are that the appellant filed a suit for declaration,
injunction, cancellation of registered power of attorney, sale deed, mutation entries, possession
and recovery of Rs.50,000 (Rupees Fifty Thousand Only) as damages, wherein it is averred that
the appellant had lawfully purchased a plot from its previous owners namely Abdul Rehman,
Muhammad Siddique both sons of Haji Musa Khan bearing Khasra No. 20, Measuring 7 rod 3
poles situated at Mohal Karez Ibrahimzai, Mouza Sirk i, Tappa Sadder, Tehsil and District,
Quetta vide Inqital No. 950 (hereinafter the "property -in-question"). It is averred in the plaint
that the respondent No.1 in connivance with respondent No.2 has got prepared a forged power of
attorney purported to be executed by the appellant and registered the same with Sub -Registrar
Shikar Pur, being S. No. 144 pages Nos. 77 to 80, Volume No.35, Book No. IV dated 20th June,
2000 without the knowledge and notice of the appellant and on the basis of above power of
attorney, the respondent No.1 sold the property in question to the respondent No.2 through
registered sale deed with respondent No.3, who without getting clearance/NOC from the office
of Sub- Registrar, Shikar Pur, illegally registered the same deed dated 8th F ebruary, 2001 and on
the basis of sale deed property in question recorded in favour of the respondent No.2 vide
mutation No. 1071. It is also averred that Sub- Registrar, Shikar Pur vide certificate dated 20th
June, 2000 made clearance that no such power of attorney was registered.
3. The respondent No.1 while filing written statement contested the suit and averred that he
had no concern in respect of power of attorney of S. No.144, however, he claimed that on the
basis of another power of attorney i.e. No.63 registered with Sub- Registrar, Shikar Pur, he
purchased the property in question from the appellant against a consideration of Rs.1,500,000
(Rupees Fifteen Lac Only) and lawfully sold the said property to respondent No.2. The
respondent No.2 claimed to be bona fide and lawful purchaser for consideration. Since the
respondent No.1 in written statement introduced another registered power of attorney in his
favour, therefore, the appellant filed an application under Order VI Rule 17 C.P.C. for seeking
amen dment in the plaint to the effect that cancellation of power of attorney registered under
Serial No. 63 be allowed, but the trial court vide order dated 22nd June, 2007 dismissed the same
on the ground that the said power of attorney is the part of pleadin g of respondent and through
evidence the parties could have opportunity to disprove or otherwise of the same.
4. From the divergent pleadings of the parties, following issues were framed: --
(1) Whether the suit is not maintainable in view of legal obje ctions B, and D of the written
statement?
(2) Whether the plaintiff is owner of property in question?
(3) Whether the property in dispute has been sold by the defendant No.1 to defendant No.2
on basis of the forged and fake power of attorney Nos.144 and 63?
(4) Whether the mutation entry No. 1071 of the property in dispute is illegal one and liable to
be cancelled?
(5) Whether the plaintiff is entitled for the recovery of Rs.50,000 as damages?
(6) Whether the plaintiff is entitled for the relief c laimed for?
(7) Relief.
5. The appellant produced seven witnesses and recorded his statement through attorney. In
rebuttal, the respondents produced four witnesses and respondent No. 2 recorded his statement
through attorney Ameer Hamza.
6. The trial court after hearing the parties and evaluating the evidence dismissed the suit
filed by the appellant vide impugned judgment.
7. The learned counsel for the appellant contended that the impugned judgment suffers from
misreading and non- reading of eviden ce; that the respondents have neither produced any power
of attorney nor proved the same but the trial court on the basis of inadmissible evidence non-
suited the appellant; that the property in question is situated in Quetta and the respondent No.1
got pre pared a forged power of attorney at Shikar Pur, which was not acknowledged by the
representative of Sub -Registrar, Shikar Pur, therefore, the impugned judgment is based on
presumption; that the impugned judgment is contrary to evidence on record, as such, the same is
liable to be set aside.
The attorney for respondents Nos.1 and 2 defended the impugned judgment and
submitted that the same is liable to be sustained.
The learned Additional Advocate General argued that no State interest is involved in the
property in question, as the dispute is between the private parties, which requires to be decided in
accordance with law.
8. Having heard the learned counsel for the parties and gone through the evidence on
record. It is the case of the appellant that he is owner of property in question and registered
power of attorney allegedly mentioned in the plaint and written statement purportedly executed
by the appellant in favour of respondent No.1, is forged, having no legal effect. It is also the case
of appel lant that further transfer of the property in question in favour of respondent No.2 on the
basis of forged power of attorney, is also void, which is liable to be cancelled. Whereas, the
respondent No.1 claimed to be the lawful general attorney/vendee in consideration and
consequent whereof, the appellant on 27th March, 2000 executed the general power of attorney
in his favour, which was registered on 20th June, 2000 at pages Nos. 77 to 80 at Serial No.63,
Volume No. 26 registered with Sub- Registrar, Shikar Pur and the respondent No. 2 asserted that
he has lawfully purchased the property from respondent No.1.
9. The trial Court while deciding issue related to objection 'B' of the written statement held
that the appellant has not sought in his plaint the rel ief for cancellation of second power of
attorney i.e. Exh.D/5. It is evident from the record that while filing written statement, the
respondent No.1 claimed his right on the basis of registered general power of attorney No.63
instead of power of attorney No.114. The appellant had filed an application under Order VI, Rule
17, C.P.C. and the trial Court vide order dated 22nd June, 2007 had not permitted the appellant to
amend his plaint for seeking relief of cancellation of power of attorney No. 63 in the following
terms:
"Arguments on both application mentioned above heard from both sides and case file was
perused, the plaintiff in his application under Order VI, Rule 17 has referred to the power of
attorney 27 -3-2000 and prayed that he may be allowed to challenge the validity of the same
through amendment in his suit. But whereas the afore -referred power of attorney has already
been made part of case file though (sic) written statement, therefore the plaintiff has an
opportunity to disprove the validity of said power of attorney though (sic) his evidence without
making amendment in his suit. So for as the application of imputing the documents in custody of
defendants, as the validity of same has not yet been disproved, therefore the defendants cannot
be co mpelled to produce the same for impounding of court. For the forgoing reasons both the
applications are hereby dismissed."
10. The appellant in his plaint has sought relief of cancellation of sale deed and mutation
entries No. 1071 dated 13th February, 2 001 effected in favour of respondent No.2. Admittedly,
these entries were affected on the basis of power of attorney No. 63 i.e. Exh. D/5. The trial Court
in view of the order dated 22nd June, 2007 and out of pleadings of the parties framed issue No.
3. Thereafter, both the parties produced pro and contra evidence. The pleadings in substance and
issue No.3 framed regarding power of attorney No. 63 i.e. Exh.D/5, makes out a case
cancellation or otherwise of the above power of attorney, therefore, the finding s of the trial court
in respect of issue No.1 related to objection 'B' are not sustainable , thus the finings of trial court
in respect of issue No.1 related to objection 'B' are reversed and the legal objections are
overruled. Reliance is placed on the case of Muhammad Nawaz Khan v. Muhammad Jaffar Khan
2010 SCMR 984, wherein, the Hon'ble Supreme Court has held as under: --
"It is settled law that courts have power to grant an effective or ancillary relief even if not
prayed for."
11. The sale deed Ex. D/1 and mutation entries Ex.D/2 of the disputed property are the
outcome of general power of attorney Ex.D/5, therefore, all the issues are connected with issue
No.3 and the case of both the parties hinges upon Ex.D/5.
12. The appellant to substantiate his ownership produced Sale deed Ex.P/5 on the basis
whereof the mutation entries dated Ex.P/4 of the disputed property recorded on his name.
13. The judgment impugned revolves around issue No.3 only, which is the main issue in the
instant case and all th e issues interconnected with issue No.3. The record of the case and
evidence adduced by the parties reveal that the sale deed Ex.P/5 and the mutation entries Ex.P/4
are not disputed between the parties through which the property in dispute was transferred in
favour of the appellant by the previous owner, therefore, in view of issue No.2, there is no cloud
in respect of ownership of the appellant. The respondent No.1 contended that he had purchased
the property in dispute for a consideration of Rs. 150,000 i n presence of the witnesses at Shikar
Pur and on the same date i.e. 27th March, 2000, the general power of attorney was purportedly
executed by the appellant in his favour, which was registered at Sub- Registrar, Shikar Pur on
20th June, 2000 at pages Nos. 77 to 80 at Serial No. 63 Volume No. 26. The respondents further
produced the registered sale deed Ex.D/1, on the basis whereof, the respondent No. 1 being an
agent of the appellant, in view of the power of attorney Ex.D/5 sold out the property to
responde nt No.2 on 24th January, 2001 and thereafter, the mutation entries of the property in
dispute were effected in favour of the respondent No. 2 vide mutation No. 1071 (Ex.d/2) dated
13th February, 2000. In respect of claim of his purchase of the property in dispute, the
respondent No.1 has failed to substantiate the same through any reliable evidence.
14. The important piece of evidence relied by the respondents is a photocopy of general
power of attorney Ex.D/5 purportedly executed by the appellant in favour of respondent No.1
(tendered in the statement of attorney for respondent No.2) and a photocopy of certificate
Ex.D/3, which was tendered in evidence by Zaheer -ud-Din (DW -4) representative of Sub-
Registrar, Shikar Pur, who specifically stated that the office of Sub -Registrar, Shikar Pur is
unable to verify the contents of general power of attorney, due to burning of 90% record in the
year, 2004. He also deposed as under: --
15. The statement of DW -4 reveals that he has not acknowledged the authentici ty of general
power of attorney in its true perspective and admitted it to be a doubtful document, besides, on
the following ground too, this document has not been proved:
(1) That no record related to power of attorney No. 63 was produced;
(2) That no proof regarding burning of record in the office of Sub- Registrar, Shikar Pur in
2004 was produced;
(3) That Muhammad Alam (P.W.5) Sub- Registrar, Shikar Pur also appeared before the trial
court on 9th August, 2007 and produced the record pertaining to th e year, 2003 as Exh.P/1- A. He
neither stated about burning of record nor any such question was put to him by the respondents;
and
(4) The respondent No.1 filed written statement on 16th March, 2006 but not pleaded about
the burning of record in the offic e of Sub- Registrar, Shikar Pur related to power of attorney No.
63.
16. The statement of DW -4 itself negates the existence/registration of general power of
attorney No.63 in the office of Sub- Registrar, Shikar Pur and Ex.D/3 a photocopy, has been
exhibit ed in evidence without permission of the court to lead secondary evidence, therefore,
Ex.D/3 is taken out of consideration. Reliance is placed on the case of Amirzada Khan and others
v. Ahmed Noor and others, PLD 2003 SC 410, wherein, the Hon'ble apex Cour t has held as
under: --
"............we were amazed to find that instead of original document a photostat copy was
exhibited in evidence without the leave of the trial Court to lead secondary evidence, after the
proof of loss or destruction of the original one. Since the respondents did not plead loss or
destruction of the original agreement, we would be legally justified in presuming that they are
guilty of withholding best available primary evidence. We feel, had it been produced in Court, it
would perh aps have been unfavourable to them. Since the original document has not been placed
on record, we are not inclined to pass any order for impounding the same. Assumption of the
trial Court as well as the High Court that the deed of sale being more than 30 y ears old was a
valid piece of evidence within the contemplation of Article 100 of Qanun- e-Shahadat Order,
appears to be misconceived. Suffice it to observe that the document itself being inadmissible in
evidence, hardly any presumption of correctness or it s validity can be attached to it in the
circumstances. In the absence of original document, in our considered opinion, no presumption
of correctness or its due execution can be drawn in this case."
17. The attorney for respondent No.2 namely Ameer Hamza has tendered a photocopy of
power of attorney No. 63 in his statement, which was placed on record as Ex.D/5. The attorney
for respondent No.2 was neither a marginal witness nor executant, even otherwise without caring
to ask for and directing for production of original document, there is nothing on record to suggest
that the original of Exh.D/5 i.e. general power of attorney was lost, or was not available with the
respondents. Mere production of photocopy of power of attorney would not be enough to entitle
any party to the suit to produce the secondary evidence unless the condition laid down in Article
76 of the Qanun- e-Shahadat Order, 1984 stands satisfied, as such no reliance can be placed on
Ex.D/5 and Ex.D/3. In this regard, reliance is placed on the cas e of Syed Mansoor Ahmed v.
Mst. Maqbool Begum and others, 1990 SCMR 1259, wherein, the apex Court has held as under: -
-
"It was urged on behalf of the appellant that, the production of a certified copy of the
registered deed was admissible in evidence wi thout the original being tendered, under section
57(5) of the Registration Act, 1908, and the appellant was not required to adduce any other
secondary evidence to prove the original sale deed. This argument is devoid of substance. The
only effect of sectio n 57(2) of Registration Act, as plainly warranted by its terms is that the
certified copy of a registered document "shall be admissible for the purpose of proving contents
of the original document". Admissibility of evidence is to be distinguished from proof. The
certified copy of a registered document may prove the contents of the original document, but
merely showing as to what were the contents of the original document, is not sufficient in
absence of the proof of execution of the original document. Ther efore, at best it is secondary
evidence of the contents of the original. Still the question whether such secondary evidence
could be produced depends upon the satisfaction of the conditions laid down in Article 76 of the
Qanun- e-Shahadat, 1984, and in the present case clause (c) thereof is attracted, namely, that it
must be proved that the original was destroyed in the manner alleged. Therefore, the appellant
had no right to lead the secondary evidence of the contents of the original. In Kartar Singh v.
Didar Singh and others AIR 1934 Lah. 282, it was held that production of a registered document
in evidence did not dispense with the necessity of proving its execution if it is denied. Similarly
in Muhammad Cherag v. Dullay Khan PLD 1954 Dacca 134, it was lai d down that a person
relying on a document is bound to prove its execution and the fact that it was registered makes
no difference, because the inquiry made under the Registration Act with regard to the execution
of the document by the alleged executant is not a judicial inquiry by a court, but is confined to
the purpose of registration as departmental duty."
The Hon'ble Supreme Court in the case of Anwar Ahmed v. Mst. Nafis Bano through
Legal Heirs, 2005 SCMR152 has held as under: --
"Reverting to the production and exhibition of said document, it was incumbent upon the
appellant to examine attesting witness Syed Azizul Hassan Notary Public to prove its execution,
as according to the appellant himself, this document was written in the City Courts. Non -
production of this witness to prove the contents of the document was fatal to the case of the
appellant with the legal consequence that the recitals of this document cannot be said to have
been proved in terms of Article 78 of Qanun -e-Shahadat 1984. It was stated at the Bar that the
attesting witness had died before his evidence could be recorded at the trial but mere statement
would not exonerate the appellant of his legal obligation to prove the contents of a disputed
document. This fact should have been pleaded before the trial Court and having established non-
availability of the witness by reason of his death, steps should have been taken to adduce
secondary evidence with the leave of the Court. Simply because no objection was raised to the
production of document would not render the document as proved. There is plethora of case -law
on the subject but for the sake of reference one may refer to Muhammad Yusuf v. S.M. Ayub
PLD 1973 SC 160, Allah Dad v. S.M. Khan 1989 CLC 2289, President of Pakistan v. Ms.
Benizir Bhutto 1992 MLD 383, Muhammad Anwar v. Muhammad Ismail 1992 MLD 860,
Ghulam Nabi v. Muhammad Yusuf 1993 CLC 314, Nazir Ahmed v. Muhammad Rafique 1997
CLC 257, Nazeer Ahmed v. Abdul Hameed Khan 2001 YLR 2145, Abdul Hameed v.
Muhammad Iqbal 2002 YLR 2772, Thakurdas v. Topandas AIR 1929 Sindh 217 and Ghansham
Singh v. Muhammad Yacoob AIR 1933 Sindh 257. "
18. There can be no cavil with the proposition that Ex.D/5 not only inadmissible in evidence,
it does not confer any right, title or interest in favour of respondent No.1. The trial Court has not
adverted to this vital aspect of the case and proceeded to accept the photocopy of Ex.D/5 without
caring to ask for original document. The respondent No.1 has not pleaded loss or destruction of
the original p ower of attorney nor adopted the recourse of Articles 75 and 76 of the Order,
therefore, respondent No.1 has failed to prove the genuineness or authenticity of general power
of attorney No. 63 i.e. Ex.D/5, therefore, the findings of the trial court in respect of issues Nos.2,
3 and 4 are result of mis -appreciation, misreading, non -reading of evidence and also based on
inadmissible evidence produced by the respondents, thus the same are reversed and issues Nos.2,
3 and 4 are decided in affirmative and the ap pellant is entitled for the relief claimed for.
19. After reappraisal of evidence on record, it is safely concluded that the documents Ex.D/3
and Ex.D/5 being inadmissible in evidence and in the absence of original power of attorney
No.63 i.e. Ex.D/5, no presumption of correctness or its due execution can be drawn in this case,
thus, the appellant is lawful owner of the property in question. The respondent No.1 had sold the
property in question to respondent No.2 on the basis of fake power of attorney No.63 Ex.D/5 and
the mutation entries No.1071 of the property in question is illegal and the issues are decided
accordingly, therefore, the registered sale deed Ex.D/1 and imitation entries No. 1071 dated 13th
February, 2001 Ex.D/2 in favour of respondent No.2 have no legal effect and liable to be
cancelled and the appellant is entitled for possession of the property in question. The findings of
the trial court suffer from serious misconstruction of evidence and misconception of law in that
the evidence on rec ord has not been correctly appreciated in its true perspective, therefore, the
impugned judgment is not sustainable.
In view of the above, the appeal is allowed, the impugned judgment/decree passed by the
trial court is set aside and the suit filed by the appellant is decreed in his favour and against the
respondents. Parties are left to bear their own costs.
Decree sheet be drawn.
AG/23/Bal Appeal allowed.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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