NOOR HASSAN and others vs ALI SHER and other

' SARMAD JALAL OSMANY, J.---This Appeal, by leave of the Court, impugns the Judgment of the learned Lahore High Court (Bahawalpur Bench) whereby Civil Revision No, 77 of 1993 filed by the respondents against the appellants was allowed and the decrees of the learned Civil Court as well as the learned Appellate Court in favour of the appellants were set aside.

2. Briefly stated the facts of the matter are that the predecessor-in-interest of the appellants viz. Peer Nazam Dewan and Mst. Khair-in-Nisa had filed a suit against the respondents for declaration etc. To the effect that the power of attorney allegedly given by them to one Peer Ghulam Hussain- in respect of the suit land was fraudulent and consequently the subsequent sale of the land to respondent No, 1 Ali Sher etc. Was void ab initio and hence fit to be set aside. The suit was decreed by the learned Civil Court and so also the Appeal filed by the respondents failed before the learned Appellate Court. However as noted above the learned High Court in Revision set aside the findings of both the Learned lower forums and consequently the suit was dismissed.

3. In support of the Appeal, Mr. Zahid Hussain Khan, learned Advocate Supreme Court appearing for the appellants has submitted that the bone of contention between the parties was the power of attorney allegedly given to Peer Ghulam Hussain by the plaintiffs viz. Peer Nazam Dewan and Mst.

Khair-in-Nisa and it was the plaintiffs' case all along that they had never executed the same and consequently mutation in favour of the respondent No, 1 Ali Sher upon sale of the suit property to him by the Attorney Peer Ghulam Hussain was fit to be set aside. Hence per learned Advocate Supreme Court, the burden of proving such power of attorney rested squarely upon the respondents/defendants which they have failed to discharge. In this regard, firstly he has referred to the pleadings of the parties and secondly to the deposition of the witnesses and the fact that only a photocopy of the Power of Attorney was produced by the defence witness. In this regard learned Advocate Supreme Court has referred to the deposition of D.W.6 Ghulam Farid who was the marginal witness to the Power of Attorney and only says that he had identified both the plaintiffs and under cross examination admits that no money changed hands between the parties at the time when he had identified them and that he was unaware as to who had scribed the power of attorney. Further he does not remember as to whether he had identified the parties on the day of execution of the power of attorney. So also per learned Advocate Supreme Court the other marginal witness Peer Ghulam Hussain was never produced by the respondents/defendants in which event the power of attorney has not been proved in terms of Article 79 of the Qanun-e- Shahadat Order, 1984 according to which at least two attesting witnesses have to be called for the purpose of proving a document which is required by law to be attested as was the power of attorney since it pertained to financial and future obligations and hence was compulsorily attestable under Article 17(2)(A) of the Order, 1984. Consequently learned Advocate Supreme Court has submitted that the power of attorney was never proved in accordance with law and hence the sale transaction in favour of Ali Sher on the authority of said power of attorney was void ab initio.

4. Learned Advocate Supreme Court has further submitted that the plaintiffs' witnesses have squarely denied the said power of attorney and as it was not in their possession obviously they could not produce it. Similarly under cross-examination they were not confronted with the power of attorney at all. Finally learned Advocate Supreme Court has submitted that the power of attorney is dated 7th September, 1968 and was registered on 10th September, 1968 whereas the sale deed was executed few days thereafter i,e, 19th September, 1968 in favour of Ali Sher. Consequently there was no need to give the power of Attorney to Ghulam Hussain if indeed the sale transaction was to be made a few days after execution of the power of attorney.

5. On the other hand Mr. Muhammad Anwar Bhor, learned Advocate Supreme Court appearing for the legal heirs of respondent No,1 has submitted that Ghulam Hussain, the attorney, in his examination in chief has fully owned the power of attorney and that he had paid an amount of Rs, 40,000 to both the plaintiffs upon the sale of the land to respondent No, 1 Ali Sher. Under cross- examination he has remained steadfast despite searching questions asked by the learned counsel appearing for the plaintiffs. Similarly D.W.1 Khurshid Hussain the scribe of the power of attorney has stated that he had entered the record of the power of attorney in his register and produced a photocopy as Exb-D-1 and that Peer Nazam Dewan had affixed his signatures to said register learned Advocate Supreme Court has further submitted that Peer Nazam Dewan was a close relative of Ghulam Hussain and hence the power of attorney was given to the latter. He has further added that respondent No, 1 All Sher is a bona fide purchaser and hence the transaction is protected under section 41 of the Transfer of Property Act etc.

6. We have heard both the learned ASCs and perused the record along with their assistance.

7. Insofar as the execution of the power of attorney is concerned, we are of the opinion that indeed it has not been proved in accordance with Article 79 of the Qanun-e-Shahadat Order, 1984 which enunciates that if a document is required by law to be attested, it must be proved through two attesting witnesses if they are alive and subject to the process of the Court and capable of giving evidence. In terms of Article 17(2)(a) of the said Order any matter pertaining to financial or future obligations, if reduced in writing, same would have to be attested by two men, or one man and two women. In the present case only one marginal witness D.W.6 Ghulam Farid was produced and even he under cross examination has stated that he was called only to identify the plaintiffs and that no money was given in his presence to them. No evidence has been led by the defendants/respondents as to why the other marginal witness was not produced. Similarly it would be seen that the execution of the power of attorney and the sale transaction is only a few days apart and consequently there was no need for the power of attorney as the parties belong to the same village. So also it would be seen that secondary evidence has been produced regarding the power of attorney viz a copy thereof on the ground that the original was lost. This is only a bare statement on behalf of the defendants and does not sound convincing. Finally it would be seen with regard to section 41 of the Transfer of Property Act, a sale transaction is protected if the ostensible owner, with the implied or express consent of the real owner, transfers the property to a third person for consideration, provided the transferee after taking reasonable care to ascertain that the transferor had the power to make the transfer, has acted in good faith. In our opinion section 41 ibid would hardly apply to the transaction in question for the simple reason that had the respondents made a cursory enquiry they would have found that the suit land was in the names of the plaintiffs. This coupled -with the fact that only a few days had elapsed between the execution of the power of attorney and the sale transaction should have alerted them particularly when the parties were residents of the same area. Hence the respondents cannot be termed as bona fide purchasers for value so as to seek protection under section 41 ibid.

8. For the foregoing reasons, we are of the opinion that respondents/defendants could not prove the power of attorney in question. Consequently any sale transaction on the basis of the same cannot be given effect to. For the foregoing reasons, this appeal is allowed.