P L D 2022 Balochistan 51
Before Muhammad Ejaz Swati, J
BAHADUR KHAN--- Petitioner
Versus
KARIM GUL and 4 others ---Respondents
Civil Revision No. 278 of 2020, decided on 21st October, 2021.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 17 & 79--- Civil Procedure Code (V of 1908), O. VI, R. 2--- Respondent filed suit for
declaration/specific performance claiming that he purchased property from another
respondent for certain consideration; that out of said property some portion was owned by
yet another respondent and a bigger portion was in the name of petitioner; that petitioner had given power of attorney for sale of his respective share; that he had paid major part of consideration amount and remaining consideration was to be pai d at the time of mutation ---
Suit was concurrently decreed ---Petitioner contended that plaintiff allegedly purchased the
suit property form petitioner through his attorney but no such power of attorney was produced to substantiate his claim that he acted as agent of the petitioner; that whole suit was
based on alleged agreement which had not been produced; that suit had been decided on oral
evidence which was beyond the pleadings ---Contention was that sale of the suit property had
not been denied by attorney ---Validity ---Petitioner had specifically denied the contention of
plaintiff (in his written statement) that neither he/his sons sold out their land to anyone nor
gave authority to sell out their land and Trial Court had framed specific issue in respect of
such controversy--- Plaintiff's witnesses had deposed the facts beyond the pleadings; none of
the witnesses attested the impugned agreement ---Plaintiff stated (in evidence) that petitioner
verbally sold suit property to him while in his plaint asserted tha t the same was purchased by
him through attorney of the petitioner ---Evidence of the plaintiff was not consistent with his
averments in plaint---Agreement was denied by the petitioner and neither such agreement was produced on record nor marginal witnesses thereof were produced---Both essential
documentary evidence (i.e. agreement to sell and power of attorney) had not been produced by plaintiff to substantiate his case---Findings of appellate Court suffered from material irregularity/illegality/mis -construction of law ---Revision petition was allowed; impugned
judgments/decrees were set aside; and suit was dismissed, in circumstances.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 18 & 19--- Civil Procedure Code (V of 1908), O.VI, R. 2--- Res jestae---Evide nce,
relevancy and consistency of ---Principle ---Averment made in pleadings did not constitute
evidence, but evidence led in party's support must be consistent therewith--- Anything stated
outside the scope of the averments in pleadings could not be looked i nto.
2006 SCMR 562; PLD 1976 SC 469 and 1996 SCMR 336 rel.
(c) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 17 & 79---Agreement to sell ---Attestation and proof ---Scope ---Agreement to sell an
immovable property squarely falls within the provision of S.17(2) of Qanun- e-Shahadat,
1984 and has to be compulsorily attested by two witnesses ---Such requirement is a sine qua
non for validity of agreement ---For proof of such agreement, it is mandatory that two
witnesses must be examined by parties as per Art. 79 of Qanun- e-Shahadat, 1984.
(d) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 30, 113 & 117---Civil Proced ure Code (V of 1908), O. VI, R. 2---Duty to prove
case---Admission of co -defendant regarding agreement would not absolve the plaintiff to
prove the same in terms of law enunciated by Supreme Court in Hafiz Tassaduq Hussan's
case (PLD 2011 SC 241).
(e) Qanu n-e-Shahadat (10 of 1984) ---
----Arts. 17 & 79 ---Powers of Attorney Act (VII of 1882), S. 2--- Power of attorney---
Attestation and proof ---Power of attorney is a document which creates financial liabilities, as
such, is to be attested by at least two witnes ses and proved by evidence of attesting witnesses
as required under Qanun -e-Shahadat, 1984.
(f) Registration Act (XVI of 1908) ---
----S. 17 ---Contract Act (IX of 1872), S. 201--- Power of attorney--- Compulsory registration
of---Scope ---Power of attorney confers only those powers which are specified therein and in
case power of attorney creates any right, title or interest in immovable property, then it
should be compulsorily registered as per law.
Syed Saleem Akhtar for Petitioner.
Naseebullah Sagi Tareen for Respondent No.1.
Naseer -ud-Din Mengal, Additional Advocate General for Official Respondents.
Date of hearing: 15th October, 2021.
JUDGMENT
MUHAMMAD EJAZ SWATI, J .---The respondent No.1 (plaintiff) filed a suit for
declaration and specific performance, against the petitioner (defendant No.1) and respondents Nos.2 and 3, that he has purchased a plot/land bearing Khasra No.9 measuring
9000 Sq. Ft, situated at Mohal, Mouz a Khushkaba Sahibzada, Tappa Durrani, Tehsil City,
District Quetta from the respondent No.2 Kamran son of Sabar Khan (respondent No.2),
against the sale consideration of Rs.13,21,500/ -. It was further contended that out of above
land 2000 sq. ft was owned by respondent No.3 and remaining land measuring i.e. 6810 sq. ft in the same Khasra No.09 was in the name of Bahadur Khan son of Bole Khan (the
petitioner). That the petitioner had given power of attorney to the respondent No.2 for the
purpose of sale of l and in question.
2. It is the case of respondent No.1/plaintiff that he had paid Rs.1100000/ - on the date of
agreement i.e. 29 -08-2013 and Rs.100000/ - was paid on 22- 10-2013 through Muhammad
Azeem and possession of land was handed over to him by the respon dent No.2 and he was
bound to transfer the mutation entry in the name of plaintiff according to agreement, while
the remaining amount of Rs.221500/ - to be paid at the time of mutation. The plaintiff in his
suit had sought following relief,
i. To declare t hat the plaintiff is the legal owner of the land Khasra No.9 totally
measuring 9000 Sq. Ft situated at Mohal and Mouza Khushkaba Sahizada Tappa Durrani Tehsil City District Quetta and defendants Nos.1 and 2 has no concern or connection with the same.
ii. To direct the revenue authorities/Tehsildar City Quetta to transfer the Mutation
entries in the name of plaintiff from defendants Nos.1 and 2.
iii. To restrain the defendants permanently and direct them not to interfere in the peaceful possession of the p laintiff over the land in question.
iv. Any other relief as may be deemed fit and appropriate in the circumstance of the
case may also be awarded."
3. The suit was contested by the petitioner. Out of divergent pleadings 8 issues were
framed, after having evidence on record from both the sides, the learned Judicial Magistrate -
IX/Civil Judge Quetta, vide judgment dated 31 - 10-2016, decreed the suit in favour of the
plaintiff as under,
"It is held that suit brought by plaintiff is hereby decreed and he is entitled to relief
claimed for and the defendants Nos. 1 and 5 are directed to transfer the mutation entries of disputed property in favour of the plaintiff' after payment of the outstanding amount to defendant No. 1 .
Given under my hand and seal of this Court on this day of 31st October, 2016."
4. On appeal filed by the petitioner, the learned Additional District Judge -VII Quetta
Balochistan, vide judgment and decree dated 23- 7-2020 dismissed the appeal.
5. The learned counsel for the petitioner contende d that the plaintiff alleged purchase of
property in dispute from the petitioner through his attorney i.e. respondent No.2, but no such power of attorney was produced to substantiate his claim that respondent No.2 acted as agent of the petitioner. That the whole suit of the plaintiff was based on an agreement dated 29- 8-
2013, which has not been produced and suit has been decided on the basis of oral evidence, which was beyond the pleadings. That respondent No.2 had no authority either to dispose of
the property in dispute, without having a lawful authority from the petitioner (real owner of
the property) nor any such general power of attorney was produced. That the impugned judgment and decree suffers from misreading, non -reading of evidence and misinterpret ation
of law.
6. The learned counsel for the respondent No. 1 contended that the sale of the property
in dispute has not been denied by the respondent No.2 and he validly entered into an agreement with plaintiff and received the consideration amount and in this respect plaintiff
has substantiated his case through evidence, therefore, impugned judgment and decree is liable to be sustained.
7. Having heard the learned counsel for the parties and perused the record. The
respondent No.1 /plaintiff in his plaint at paragraph No.1 asserted as under,
"On the date 29/8/2013 plaintiff owned a plot/land bearing Khasra No.09 measuring 9000 Sq ft, situated at Mohal Mouza Khushkaba, Sahibzada Tappa Durrani, Tehsil City, District Quetta from one Kamran son of Sabar Khan against a sale transaction of Rs.132500/ - in which the owner of land measuring 2000 Sq ft. Kamarn son of Sabar
Khan an the remaining land measuring 6810 Sq ft in the same Khasra No.09 which is in the name of Bahadur Khan son of Bole Khan, who has been give n the power of
attorney to Kamran son of Sabar Khan for sale the said land in question, as such after payment of consideration amount 1100000/ - paid on the date of Agreement to the
defendant No.2 on 29/8/2013, while the amount Rs.100,000/ - paid on 22/10/2013
through Muhammad Azeem son of Haji Umar Draz the possession of the land was handed over to the plaintiff and the defendant No.2 is bound to transfer the mutation
entry in the name of plaintiff according to the agreement at the time of giving remaining a mount Rs.221500/ - copies of agreement, fard, receipts are annexed
herewith as Annexure A, A -1, A-2, A-3."
8. The petitioner/defendant No.1 specifically denied the contention of the plaintiff as
under,
"The factual position is that neither replying defendant nor his son sold out their land
to any one nor given authority to sell out their land, the plaintiff has managed concocted story in order to deprive replying defendant from his right by means of filing such a baseless suit."
9. The learned trial court in respect of above controversies framed issue No.5 which
reads as under,
"Issue No.5.
Whether the plaintiff has purchased the property in dispute measuring 9000 Sq. Ft. from defendant No.2 appearing as representative of defendant No.3 and attorne y of
defendant No.1 against Rs.150/ - Per Sq. Ft. vide oral agreement on 29.08.2010
followed by the written agreement dated 29.08.2013 and has paid Rs.11,00,000/ - to
the defendant No.1 and defendant No.2? "
10. To prove its case the plaintiff produced PW -1 Shahzada, PW -2 Muhammad Azeem,
PW-3 Gul Rau, PW -4 Muhammad Abid and got recorded his statement.
11. The above witnesses of the plaintiff have deposed the fact beyond the pleadings and
none of above witness attested the impugned agreement dated 29- 8-2013. The plaintiff
himself stated that the petitioner/defendant No.1 verbally sold 8000 Sq feet of his property to
him, while in plaint, the plaintiff asserted that land in dispute belonging to the petitioner was purchased by him through attorney of the petitione r i.e. respondent No.2 vide agreement
dated 29- 8-2013 (the agreement).
12. The evidence and statement of the plaintiff is not consistent with what has been
pleaded by the plaintiff in his plaint. It is settled principle that averment made in the pleadings do not constitute evidence, but evidence led in their support must be consistent
therewith. Anything stated outside the scope of such averment cannot be looked into. Reliance in placed on cases reported in 2006 SCMR 562, PLD 1976 SC 469 and 1996 SCMR 336.
13. The other aspect of the matter regarding which the trial court and appellate court
eared in holding that agreement dated 29 -8-2013 has validly been arrived between the parties
is the agreement dated 29.8.2013 was specifically denied by the petitioner/defendant No.1. The agreement was neither produced by the plaintiff nor marginal witnesses thereof were produced. It is settled law that an agreement to sell an immovable property squarely fall within the provision of Section 17 (2) of the Qanun- e-Shahadat Order, 1984 (the Order) and
has to be compulsory attested by two witness and this is sine qua non for the validity of the agreement. For proof of such agreement, it is mandatory that two attesting witnesses must be examined by parties as per Article 79 of the Order ibid. In the instant case the petitioner had
unequivocally denied execution of the agreement and it is on account of that issue No.5 was framed requiring respondent No.1/plaintiff to prove the agreement, an admission of co-defendant with regard t o the agreement would not absolve the plaintiff to prove the same in
term of law as enunciated in case titled Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 SC 241) where in the Honorable Supreme Court of Pakistan observed as under,
"The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate falls evidence for the proof t hereof
and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of above discuss ion
leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 of the Attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have t o be
compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it is to be done in the way and not otherwise."
14. The respondent No. 1/plaintiff besides relying the agreement also asserted that
respondent No.2 being a lawful attorney of the petitioner executed the agreement to sell
property belonging to the petitioner.
15. According to section 2 of Attorney Act 1882, power of attorney is written
authorization, whereby the "principle" authorizes the "agent" to do the acts specified therein on behalf of "principle" which when executed will be bindings on the "principle" as if done
by him. Primary purpose of instrument of such nature is to assign authority of "principle" to another person as his agent. Power of attorney is a document which creates financial liabilities, as such, is to be attested by at least two witnesses and p roved by evidence of
attesting witnesses as required under the Order 1984. A power of attorney is held to confer only those powers which are specified therein and in case power of attorney create any rights, title or interest in immovable property, the sam e should have been compulsory
registered as per law. Reference in this respect is to be made to case titled Siraj Din and others v. Ghulam Nabi and others (PLD 2003 SC 159), wherein the Honorable Supreme Court of Pakistan observed as under,
"The entire ca se hinges upon the authenticity of alleged general power of attorney
said to have been executed by Mst. Sardaran Bibi in favour of Allah Ditta. The record
shows that no such general power of attorney was produced in the evidence before the
trial Court as s uch its being in non- existence, the question of its validity does not
arise at all. Under section 17 (b) of the Registration Act, any document that purports to create right, title or interest in immovable property requires compulsory registration. In case if it was in existence, the same should have been compulsory registered as per law and its mere attestation by the Notary Public was not sufficient to meet the requirement of the law. "
16. The case of the plaintiff as reflected in the plaint was based on an agreement dated
29-8-2013 and deed of power of attorney, both essential documentary evidence have not been
produced by the plaintiff to substantiate his case, therefore, findings of the trial court and appellate court lacked consideration of the above l egal aspect of the matter and impugned
judgment and decree suffer from material irregularity, illegality and mis -construction of law,
thus cannot be sustained.
In view of the above, instant Civil Revision Petition No.278 of 2020 is allowed.
Impugned judgm ent and decree dated 31 -10-2016 passed by Judicial Magistrate -IX/Civil
Judge, Quetta and judgment dated 23.07.2020 passed by Additional District Judge -VII,
Quetta to the extent of petitioner are set aside and suit filed by the respondent No.1 is dismissed.
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