Civil. Revision. No.32 of 2008.
Applicant: Mst.Zareedah Begum & 2 others through attorney
Asmatullah Khan. Mr.A.M.Mobeen Khan, Advocate,
Respondents. Abdul Rasheed & Shehzad Yousif,
through Mian Abdul Sallam Arain, advocate.
Official
respondents served but chose to remain the absent.
Date of Hearing 05th. November, 2012.
JUDGEMENT
SALAHUDDIN PANHWAR,J- Applicants Mst. Zareedah Begum and two others through their attorney Asmatullah Khan have assailed the judgment and decree dated 21st.April.20008, passed by the learned District Judge Ghotki, while dismissing the Civil Appeal No.62 of 2005 (Re-Mst.Zareedah Begum & two others Vs Abdul Rasheed and others), maintained the judgment and decree of trial court i.e Senior Civil Judge Ghotki dated 09th.December.2005 and 12.December 2005. Wherein, F.C. Suit no.35/2000 of the applicants was dismissed.
2. Succinctly the facts, leading to this
revision are that applicants/plaintiffs filed the suit for Declaration and
permanent injunction, stating therein, that Havaldar Barkat Hussain was owner
of an area of
3. Record further reveals that respondent Nos.1 and 2 filed their joint written statement, stating therein, that :six legal heirs of Havaldar Barkat Hussain, (including plaintiffs) in first instance sold out the suit land in their favour by way of sale agreement dated 27 September 1999, subsequently they had also executed irrevocable general power of attorney. All the legal heirs including plaintiffs received sale consideration, under receipts. The defendant No.1 as purchaser/attorney of plaintiffs had sold out the suit property to defendant No.2 through registered sale deed on 15.12.1999. They had no knowledge regarding the revocation deed and subsequent power of attorney in favour of Asmatullah. The defendant No.1 was a legal purchaser as well as attorney of the suit property and was empowered to sell the property to his brother. The plaintiffs have no locus standi to file the suit.
4. On, the divergent pleadings of the parties, trial court settled Issues:-
1)
Whether
the suit is not maintainable and is barred by any law?
2)
Whether
the power of attorney dated 29.9.1999 was revoked legally through revocation
deeds dated 04.12.1999 and 06.121999 by the plaintiffs Nos.1, 2 and 3?
3)
Whether
the foti khata badal vide entry No.200 dated 14.12.1999 is illegal, malafide
and Mst. Naheed Kausar was ignored from heirship and the same was legally cancelled
by the Assistant Commissioner vide order dated 15.02.2000?
4)
Whether
the registered sale deed dated 15.12.1999 is illegal and without consideration?
5)
Whether
six legal heirs properly executed irrevocable power of attorney after receiving
their due share from the defendant No.1 .If so what is its effect?
6)
Whether
the sit is bad for mis-joinder and non-joinder of the parties?
7)
Whether
the plaintiffs are entitled to the relief as claimed?
8) What should the decree be?
The learned trial judge after recording evidence of the parties and earing pro and contra arguments in the light of record dismissed the suit of the applicants/plaintiffs.
05.Learned
counsel for the petitioners has contended that plaintiffs/applicants rightly
revoked the power of attorney; the respondents did not deny, in their written
statement the fact of revocation of power of attorney and the revocation deed
being registered one need no notice ; the plea of sale was after thought and
even same was illegal by Section 24 of the Contract Act and that learned
appellate court not framed points for determination while dismissing the appeal
hence the such exercise was illegal and against the norms of justice. He has
relied upon 2003 S C M R 1555
(Mst.Hajran Bibi & others Vs. Sulleman & others), 2003 C L C 649 (Messrs
H.A Rahim & sons (Pvt) Ltd. Vs.
06. Conversely, learned counsel for the respondents No.1 and 2, while refuting the pleas of learned counsel for the petitioner has argued that since there are concurrent findings of two courts below, therefore, the instant revision petition is not maintainable as no illegality has been shown in the judgments; it is a matter of record that the respondents proved their case on record that respondent No.1 had interest in the property and the execution of general power of attorney was in lieu of the consideration ,therefore, same was not open to revocation hence both the courts below has not committed any illegality, while dismissing the claim of plaintiffs/applicants. In support of his grounds he placed reliance on the case law, reported in 2001 SCMR 1488 (Abdul Rahim Vs. Mukhtiar Ahmed & others) 2006 SCMR 50 (Abdul Mateen Vs. Mst.Mustakhia), 2002 SCMR 1114 (Nazir Ahmed through L.Rs Vs. Umra & others).
07. Before dilating
upon the merits of the case, it would be suffice to say that scope of
revisional jurisdiction of the High court is limited, specially, when there are
concurrent findings of trial court as well as appellate court. There are number
of case laws on this point, however, reference, if any, can be made to the case
of Hakimdino through his L.Rs and others
Vs. Faiz Bakhsh, reported in 2007 SCMR
“It is established proposition of law that
finding on questions of law or facts, howsoever, erroneous the same may be
recorded by a Court of competent jurisdiction, cannot be interfered with by the
High Court in exercise of its revisional jurisdiction under section 115,
C.P.C., unless such findings suffer from jurisdictional defect, illegality or
material irregularity.”
In case of Nazir Ahmed through L.Rs Vs. Umra and others reported in 2002 SCMR
1114, wherein it is held that:-
“It is trite law that if the judgments
impugned/challenged by the litigant before a High Court U/s 115 C.P.C,
concurrently resolve a controversy of facts one way or the other, the same
cannot be interfered with by the High Court. This is exactly what has been done
by the learned Judge in Chambers while passing the impugned judgment dated
09.5.2002.”
In another case of Abdul Mateen
and others Vs. Mst. Mustakhia
reported in 2006 SCMR 50, wherein it is held that:-
“It is settled law that re-examination
and reappraisal of evidence is not permissible
in revisional jurisdiction, even if conclusion drawn by the subordinate
Courts on a question of facts was erroneous and revisional powers of High
Court is exercised for correcting an
error committed by the subordinate Courts
in exercising of their jurisdiction and mere erroneous decision does not
call for interference, unless it is established that decision was based on no
evidence or evidence relied upon was inadmissible or the decision was perverse
so as to cause grave injustice.”
08.In view of the above sketched revisional scope of this court to find out whether the judgment of courts below are result of excess or non-exercise of jurisdiction or that there is a jurisdictional defect, I have meticulously examined available record . It is a matter of record that plaintiffs/applicants never denied execution of irrevocable general power of attorney, by them and other legal heirs, in favour of the defendant/respondent No.1 but per the present attorney of the plaintiffs/applicants they revoked such power of attorney to their extent only however, none of the present applicants/plaintiffs has appeared before the court of law to say so or explained the reason of such part of revocation or least that there was a revocation. The present attorney of the applicants/plaintiffs in his deposition has stated that the plaintiffs/applicants appeared before the Assistant Commissioner and stated that they had sold out their share to the present attorney of plaintiffs/applicants Asmatullah but again none of the applicants/plaintiffs produced such document (statements) on record nor examined any of the official of the office of Assistant Commissioner to substantiate such plea and it is also worth to add here that plaintiffs have taken specific plea that Mst Naheed Kausar daughter of Havaldar Barkat Hussain was deprived from her due share by fraudulent Foti khata badal, but in instant suit Mst Naheed Kausar is not plaintiff nor she was examined by plaintiffs to substantiate their plea thus Needless to refer the provision of article 129(g) of the Qanun-e-Shahdat Order 1984, which allows to draw an adverse inference against a party claiming and relying on a material document or specific plea but not adducing the evidence to shift the onus, without any legal justification.
09.It is also a matter of record that the respondent/ defendant No.1 categorically claimed to have got power of attorney in his favour in lieu of payment of the share money to the plaintiffs/applicants and even produced such receipts of payment on record and in such eventuality it was necessary for the plaintiffs/applicants to have appeared personally to deny such claim and documents more particularly when the present applicants/plaintiffs did not come with a plea of their being parda observing, which might have prevented them from appearing in the court because the signature/thumb marks on such receipts, claimed to be executed by the plaintiffs/applicants after receiving money, could only be legally denied by them because there can be no cavil to deny the legal position that certain acts, things and intents which the party alone can depose and explains hence on such aspects the attorney, being ignorant, cannot substitute the party. Since the defendant/respondent No.1 not only came up with plea of execution of power of attorney in lieu of payment of consideration but had also produced such record and evidence, therefore, the principle held by the Honourable Supreme Court of Pakistan in the case law, reported in 2001 SCMR 1488 ( Abdul Rahim Vs. Mukhtiar Ahmad & others) is fully applicable which reads as under:-
“The second judgment is on the question that
in case the attorney wants to sell the land to any person closely related to
him, he shall have to consult the principal. This principle, in our view, would
also not be applied where the power of attorney was executed in lieu of consideration
with a clear understanding that the land had been sold to the attorney”.
09. Further, the present attorney of the applicants/plaintiffs also came with the plea that execution of the general power of attorney in favour of the defendant/respondent No.1 was for purpose of execution of sale deed in his favour which means that execution of power of attorney by only six legal heirs (exclusion of seventh legal heir) was well within his knowledge and notice but he did not raise any objection at such time. Further, to substantiate this plea he has not produced any of the sellers (legal heirs of Havaldar Barkat Hussain), though only those could have shouldered his plea. Even otherwise, the present attorney of the plaintiffs/applicants has, nowhere, claimed that he has filed any suit for Specific Performance of Contract against the plaintiffs/applicants though he claimed to have purchased the property in question.
10. For the foregoing reasons, the concurrent findings of two courts below are not appearing to be suffering from any jurisdictional defect nor it is established that same suffer from any misreading or non-reading of the evidence which may have caused miscarriage of justice, therefore, I am clear in my view that instant revision petition is devoid of merits which is accordingly dismissed. However, parties are left to bear their own costs.
JUDGE
A.R.BROHI