2013 Y L R 831 [Sindh] Before Salahuddin Panhwar, J Mst. ZAREEDAH BEGUM and 2 others---Applicants Versus ABDUL RASHEED and 4 others---Respondents Civil Revision No.32 of 2008, decided on 30th November, 2012. (a) Civil Procedure Code (V of 1908)--- ----S.115---Revisional jurisdiction of High Court---Scope---Scope of such jurisdiction would be limited in case of concurrent findings of fact by courts below. Mst. Hajran Bibi and others v. Sulleman and others 2003 SCMR 1555; Messrs H.A. Rahim and sons (Pvt.) Ltd. v. Province of Sindh and another 2003 CLC 649; Mrs. Zaibun Nissa v. Karachi Development Authority and others PLD 1998 Kar. 348; Abdul Rahim v. Mukhtiar Ahmed and others 2001 SCMR 1488; Abdul Mateen v. Mst. Mustakhia 2006 SCMR 50 and Nazir Ahmed through L.Rs. v. Umra and others 2002 SCMR 1114 ref. Hakimdino through L.Rs. and others v. Faiz Bakhsh 2007 SCMR 870; Nazir Ahmed through L.Rs. v. Umra and others 2002 SCMR 1114 and Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50 rel. (b) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 199 & 129(g)---Adverse inference, drawing of---Scope---Such inference could be drawn against a party claiming and relying on a document or specific plea, but not producing evidence to shift its onus to opposite party without any legal justification. (c) Witness--- ----Appearance of attorney as witness instead of his principal---Scope---Attorney could not substitute principal for acts, things and intents explainable and deposable by principal alone. Asmatullah Khan, A.M. Mobeen Khan for Applicants. Mian Abdus Sallam Arain for Respondents. Official respondents served but chose to remain the absent. Date of hearing: 5th November, 2012. JUDGMENT SALAHUDDIN PANHWAR, J.---Applicants Mst. Zareedah Begum and two others through their attorney Asmatullah Khan have assailed the judgment and decree dated 21st April, 2008, passed by the learned District Judge Ghotki, while dismissing the Civil Appeal No.62 of 2005 (Re: Mst. Zareedah Begum and 2 others v. Abdul Rasheed and others), maintained the judgment and decree of trial Court i.e. Senior Civil Judge Ghotki dated 9th December, 2005 and 12 December, 2005. Wherein, F.C. Suit No.35 of 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 32.17 acres of agricultural land by virtue of allotment and transfer of the same in his name as retired military personnel, under defence force scheme. Havaldar Barkat Hussain died intestate, leaving behind him his widow Mst. Jannat Bibi, the plaintiffs Nos.1 to 3 and his other daughters Mst. Tanveer Kausar, Mst. Naeheed Kausar Mst. Farha Naz and Mst. Fouzia Naz. Defendant No.1/respondent Abdul Rasheed son-in-law of Barkat Hussain trickily and cunningly with ulterior motive to usurp the suit-land, obtained power of attorney dated 29-9-1999, registered with Sub-Registrar Division-XI Karachi, from the heirs of Barkat Hussain except Mst. Jannat Bibi and Mst. Naheed Kousar on the pretext that he shall transfer the suit-land to Asmatullah Khan, Rafiullah Khan and Qudratullah Khan to whom all the legal heirs of Barkat Hussain had sold the suit-land, through sale agreement dated 11-4-1997. The plaintiffs on coming to know about the ill-schemed programme of the defendant No.1, revoked and cancelled their aforesaid power of attorney dated 29-9-1999, through revocation deed dated 4-12-1999, executed by plaintiff No.1 and registered revocation deed dated 6-12-1999, executed by the plaintiffs 2 and 3 jointly. The defendant No.1 pursuing his ill-schemed programme, got the foti khata badal of Barkat Hussain, effected in the Revenue Record of rights in favour of only 7 legal heirs of Barkat Hussain deliberately and with mala fide intention, excluding Mst. Naheed Kausar, from the heir ship of her father vide Mutation Entry No.200, in Deh Form No.VII-B of Ddeh Bhanjro Taluka and District Ghotki. Taking undue advantage of the power of attorney, defendant No.1 Abdul Rasheed fraudulently and dishonestly, transferred the shares of six daughters of Barkat Hussain (to extent of 88 paisa as against their actual share of 75.3/7), in favour of his step-brother Shezad Yousuf (defendant No.2), through registered sale deed dated 15-12-1999, for ostensible consideration of Rs.1,40,000. The attorney of plaintiffs namely Asmatullah preferred an appeal before the Assistant Commissioner Ghotki against the defendant No.1, challenging the foti khata badal Entry No.200. The Assistant Commissioner Ghotki conducted the enquiry in the Revenue appeal and cancelled the foti khata badal Entry No.200 with directions to the Mukhtiarkar Ghotki to effect fresh foti khata badal. By order dated 15-2-2000, Mukhtiarkar effected the foti khata badal of Barkat Hussain vide Mutation Entry No.209 dated 18-4-2007, in favour of all the eight legal heirs of Barkat Hussain, defendants Nos. 1 and 2 having denied the rights of plaintiffs of their shares in the suit-land had unsuccessfully, tried to dispossess their attorney from the suit-land. 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 4-12-1999 and 6-12-1999 by the plaintiffs Nos.1, 2 and 3? (3) Whether the foti khata badal vide Entry No.200 dated 14-12-1999 is illegal, mala fide and Mst. Naheed Kausar was ignored from heirship and the same was legally cancelled by the Assistant Commissioner vide order dated 15-2-2000? (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 suit 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. 5. 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 afterthought 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 SCMR 1555 (Mst. Hajran Bibi and others v. Sulleman and others), 2003 CLC 649 (Messrs H.A Rahim and Sons (Pvt.) Ltd. v. Province of Sindh and another), PLD 1998 Kar. 348 (Mrs. Zaibun Nissa v. Karachi Development Authority and others). 6. Conversely, learned counsel for the respondents Nos.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 have 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 v. Mukhtiar Ahmed and others) 2006 SCMR 50 (Abdul Mateen v. Mst.Mustakhia), 2002 SCMR 1114 (Nazir Ahmed through L.Rs. v. Umra and others). 7. 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 v. Faiz Bakhsh, reported in 2007 SCMR 870, in which it is held that:-- 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 v. 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 under section 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 9-5-2002. In another case of Abdul Mateen and others v. 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. 8. 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 Commis-sioner 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-Shahadat 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. 9. 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 v. Mukhtiar Ahmad and 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. 9. 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. SAK/Z-18/K Revision dismissed.
Posted on: Tue, 15 Oct 2013 05:27:37 +0000
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