MUHAMMAD ASHRAF and 2 others vs MUHAMMAD MALIK and 2 others

' MIAN HAMID FAROOQ, J---The petitioners, through the present petition, seek leave to appeal against the judgment dated 18-6-2007, whereby, the learned single Judge in Chamber of Lahore High Court, Lahore dismissed petitioners' Revision Petition (C.R.No,232 of 2006).

2. Muhammad Malik and Mst. Rasoolan Bibi, respondents Nos. 1 and 2/plaintiffs, filed a suit against the petitioners and respondents No,3 claiming a decree for declaration that they are still the owners of the suit land, the power of attorney No,376 dated 13-6-1989 favouring petitioner No,1 and consequent gift mutation No,102 dated 18-1-2000 are result of fraud and do not affect their rights qua the suit land. The defendants resisted the suit through the written statement pleading that the plaintiffs appointed defendant No,1 as their general attorney for pursuing the case pending against them; he had incurred expenses on the litigation, has paid some amount to the plaintiffs, and the gift in favour of defendant No,2 was accomplished with permission of the plaintiffs. The learned trial Court framed necessary issues, recorded evidence of the parties and ultimately dismissed the suit, vide judgment and decree dated 20-5-2005, however, the plaintiffs' appeal against the said judgment and decree was allowed by the Additional District Judge on 16-1-2006 and their suit was decreed. Revision petition against the said judgment and decree was dismissed by the learned single Judge of the Lahore High Court at Lahore, vide impugned judgment dated 18-6-2007, hence the present petition.

3. Learned counsel for the petitioners submitted that both the Courts failed to appreciate that petitioner No,1 was appointed as attorney by respondents Nos. 1 and 2 and the evidence on record was not properly appreciated. He has further submitted that petitioner No,1 prosecuted a case on behalf of the said respondents and bore all the expenses, thus the petitioner No,1 was competent to make gift on behalf of the respondents. He has added that the case of Mst. Shumal Begum v. Mst.

Gulzar Begum and 3 others 1994 SCM R 818 is not applicable in this case. He has referred to the judgment of Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676.

4. We have heard the learned counsel for the petitioners and examined the available record of the case. The learned single Judge in Chamber after examining the evidence on record rightly concluded that execution of power of attorney was not proved. These findings are not open to exceptions and we are not persuaded to reverse those findings. Furthermore, the learned counsel could not demonstrate from the available record that at the time of execution of power of attorney, the contents of the said document were read over and explained to the plaintiffs, who are illiterate persons. Even if it be taken that power of attorney was validly executed, petitioner No,1 had no authority and he was not competent in law to gift or sell the suit land to his son-in-law namely, Muhammad Amin. There is no evidence on record to show that the attorney before making the gift in favour of his son-in-law ever obtained the consent and permission of the plaintiffs and sought any approval from the real owner of the property, who even according to the stance of the petitioners are his principals. It is a settled law by now that if an attorney intends to exercise right of sale/gift in his favour or in favour of next of his kin, he/she had to consult the principal before exercising that right. The consistent view of this Court is that if an attorney on the basis of power of attorney, even if "general" purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of principal after acquainting him with all the material circumstances. Here in the cases of Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others PLD 1985 SC 341, Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCM R 818 and Nisar Ahmad and others v. Naveed-ud-Din and others 2004 SCM R 619, can be referred, which are fully applicable to the case in hand. In view of the principle laid down in the aforesaid cases, the petitioners have no case and the learned High Court has rightly dismissed petitioners' revision petition.

5. Learned counsel for the petitioners has erroneously asserted that the case of Mst. Shumal Begum

(ibid) is not applicable, while we after persuing the said judgment are of the firm view that case of Mst. Shumal Begum's case (ibid) is fully applicable in the present case. It may be noted that in the judgment of Mst. Shumal. Begum the case of Fida Muhammad (ibid) was referred and relied upon.

As regards the case of Muhammad Khan's (ibid), suffice it to say that under the circumstances the said judgment is of no avail to the petitioners. No misreading or non-reading of evidence has been pointed out by the learned counsel.

6. In the above perspective, we have examined the judgment before us and find that the learned High Court did not commit any illegality, the judgment is perfectly legal and justified and we are not persuaded to reverse the judgments passed by both the Courts below.

7. For the foregoing reasons, the instant petition being devoid of any merits is hereby dismissed and leave to appeal is refused.