PLJ 2012 Lahore 396
Present: Ch. Shahid Saeed, J.
ABDUL HAQ and 7 others--Petitioners
C.R. No. 3484 of 2010, heard on 2.4.2010.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Suit for declaration with permanent injunction--Controversy about general power of attorney executed by plaintiff in favor of her real brother who on basis of same gifted out the property and subsequent mutations were sanctioned--Question of--Whether general power of attorney was true or not--Presumption of truth was attached to register documents--After receipt of consideration amount power of attorney was got registered--Respondent appeared before sub-registrar and put her thumb impression power of attorney in presence of witnesses--Respondent could not be allowed to seek cancellation of same--Validity--Courts below thrashing all aspects relating to that matter was required but Courts had failed to apply judicious mind and all other ignored--Civil revision was allowed--Appellate Court can resort to comparison of thumb impression of lady as according to petitioner--Lady was present before sub-registrar when alleged power of attorney was executed but ladies denied same. [P. ] A & B
Mr. Muhammad Iqbal Mohal, Advocate for Petitioners.
Mr. Zahid Ghafoor Azam, Advocate for Respondent.
Date of hearing: 2.4.2012.
This civil revision is directed against judgments and decrees dated 8.10.2010 and 2.7.2010 passed by learned Additional District Judge, Pasrur and learned Civil Judge, Pasrur respectively.
2. Succinctly stated the facts leading to the filing of this civil revision are that Mst. Asghari Begum, respondent, instituted a suit for declaration with permanent injunction against the present petitioners alleging therein that she being the owner of land measuring 40 kanal-1 marla, fully described in the plaint, leased out the same to her real brother Abdul Haq for a period of seven years from 1998 to 2005 against lease money of Rs. 70,000/- but when, after expiry of lease period, she contacted Abdul Haq for renewal of lease, he first kept the matter pending on one pretext or the other for some time and ultimately, informed the plaintiff that she had made general power of attorney No. 478, dated 18.12.1997 in his favour by virtue of which, Abdul Haq gifted the suit property to his real son vide Gift-Deed No. 425, dated 05.08.1998. The plaintiff avers that she did not execute the power of attorney in favour of Abdul Haq which is result of fraud and has been got prepared in connivance with the revenue officials. The plaintiff prayed for cancellation of general power of attorney Bearing No. 478 dated 18.12.1997, Gift-Deed No. 425 dated 18.12.1997 and subsequent Mutations No. 1 to 8 dated 22.01.2000 averring that the said documents are illegal and inoperative upon the rights of the plaintiff.
3. The petitioners-defendants hotly contested the suit by way of filing written statement whereby the averments of the plaintiff were opposed. Keeping in view divergent pleadings of the parties, the learned trial Court framed as many as nine issues including that of relief. After recording oral as well as documentary evidence of the parties, the learned trial Court proceeded to decree the suit of the plaintiff vide judgment and decree dated 02.07.2010. The appeal preferred thereagainst by the petitioners was dismissed vide judgment and decree dated 08.10.2010 passed by learned First Appellate Court. Hence this Civil Revision.
4. Learned counsel for the petitioners mainly contends that the general power of attorney was duly executed by the plaintiff in favour of her real brother Abdul Haq after receipt of consideration amount of Rs. 2,60,000/- which power of attorney was also got registered. Further argues that she herself appeared before the Sub-Registrar and put her thumb impression on the disputed general power of attorney in presence of the witnesses whereafter she could not be allowed to seek cancellation of the same. He avers that presumption of truth is attached to the registered documents. His more stress was on the point that the plaintiff lady is still alive, therefore, the matter, be remanded to learned trial Court for comparison of thumb impression of the lady so that truth may be reached. Learned counsel further avers that no illegality or fraud has been committed by Abdul Haq who having possession of the property and holding the general power of attorney was fully authorized to gift the disputed property to his son. He further points out that the possession of the property is admittedly with the petitioners but the plaintiff has filed the suit for declaration without seeking possession which is not maintainable. He further argues that learned Courts below have failed to apply their judicious mind and even issue-wise findings have not been given by them. He prays that the instant civil revision be allowed, the impugned judgments and decrees be set aside and the case be remanded to the learned trial Court for decision afresh. He has relied upon the law laid down in cases Rahmatullh Khan and another vs. Ghulam Farid (2009 SCMR 371). Abdul Mannan and others vs. Sikandar Khan (1992 CLC 505), Alam Khan and 3 others vs. Pir Ghulam Nabi Shah & Company (1992 SCMR 2375), Taj Muhammad Khan (deceased) through LRs and another vs. Mst. Munawar Jan and others (PLJ 2009 SC 375) and Nazir Ahmad and another vs. M. Muzaffar Hussain (2008 SCMR 1639).
5. On the other hand, learned counsel for the respondent-plaintiff vehemently opposes this civil revision and fully supports the impugned judgments and decrees.
6. The whole controversy revolves around the general power of attorney allegedly executed by the plaintiff in favour of her real brother Abdul Haq who on the basis of the same gifted out the property in favour of his son vide Gift-Deed No. 425 dated 18.12.1997 and subsequent Mutations No. 1 to 8 dated 22.01.2000 were also sanctioned. The alleged power of attorney was registered vide No. 478 on 18.12.1997. Issue No. 5 was framed at to whether the general power of attorney was true or not but the same has not been discussed independently nor independent findings have been given by learned Courts below. In my view, Issue No. 5 was a vital issue add full-fledge discussion by learned Courts below thrashing all the aspects relating to this matter was required but the learned Courts have failed to apply their judicious mind and altogether ignored Issue No. 5. In this view of the matter, the instant civil revision is allowed, judgment and decree dated 08.10.2010 passed by learned First Appellate Court is set aside and the case is remanded to the learned First Appellate Court for decision afresh after hearing the parties. For the very purpose, the appeal of the petitioners would be deemed to be pending before the learned lower appellate Court. The appellate Court may resort to comparison of thumb impression of the plaintiff lady as according to learned counsel for the petitioner, the lady was present before the Sub-registrar when the alleged power of attorney was executed but the lady denies the same. Parties are directed to appear before the learned First Appellate Court on 21.4.2012.
(R.A.) Case remanded