MUHAMMAD YASIN Versus DOST MUHAMMAD

IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Petitioners seek leave to appeal against judgment dated 20th July, 2001 passed by Lahore High Court, Multan Bench, Multan whereby Writ Petition No.2740/1994 filed by respondents has been accepted.

2. Briefly stating facts of the case are that petitioners got allotted State land specification whereof is given in the impugned judgment under "Grow More Scheme." Subsequently, on 26th February, 1973 predecessor-in- interest of respondent No.1 appointed Suleman s/o Karim Bukhsh as his General Attorney holder. It seems that on 19th December, 1989 Attorney of the respondents predecessor-in-interest obtained permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 from Collector to transfer the land of the principal in favour of his sons i.e. petitioners. This Act was challenged by the respondents' predecessor Dost Muhammad before the Board of Revenue, which was dismissed on the ground that an appeal against such order is competent before the Commissioner/District Collector and not before the Board of Revenue. This order was again called in question by filing a Review Petition before the Board of Revenue but the same was dismissed on. 4th April, 1994. Thereafter, he filed a Writ Petition before the High Court, which has been accepted by means of impugned order.

3. Learned counsel for the petitioner contended that under the registered General Power of Attorney, predecessor-in-interest of respondent No.1 has authorized late Suleman for transferring property in question by means of seven different modes including the "sale" but learned High Court inadvertently omitted to attend this aspect of the case and has drawn an inference that late Suleman was not authorized to transfer the property by means of sale, therefore, the impugned judgment warrants interference by this Court.

4. We have heard the learned counsel and have also gone through Power of Attorney which is available on record. A perusal whereof indicates that authority of the Attorney for transferring the property by means of seven modes mentioned therein including "sale" was subject to the condition that the Attorney to first of all will get the property transferred through registered sale deed in favour of Dost Muhammad (late). Relevant sentences from the Power of Attorney are reproduced hereinbelow :--

5. This Court in the case of Fida Muhammad v. Mir Muhammad Jan (deceased) through legal heirs and others (PLD 1985 SC 341) has laid down following two principles for interpretation of a General Power of Attorney, which contains a clause depriving the owner from his right:

Firstly in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and

Secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction. The following two examples given under section 215 of the Contract Act are illustrative of the intention of the law:--

(a) A directs B to sell A's estate. B buys the estate for himself in the name of C. A, on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material facts, or that the sale has been disadvantageous to him.

(b) A directs B to sell A's estate. B, on looking over the estate before selling it, finds a mine on the estate which is unknown to A. B informs A that he wishes to buy the estate for himself, but conceals that discovery of the mine. A allows B to buy, in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his option.

It is also well known principle of law that all such instruments of Power of Attorneys in pursuance whereof attorney is authorized to act on behalf of principal, are to be construed strictly. Reference can be made to AIR (34) 1947 Nagpur 17 (CN3), PLD 1969 Karachi 123 and 1995 CLC 1541. In view of the principles discussed in these judgments we are of the opinion that according to the terms of Power. of Attorney dated 26-2-1973 Dost Muhammad before transferring/alienating the property on the name of petitioners was bound to have obtained a registered sale deed in the name of the principal from the concerned' departments of the Government. It is an admitted fact that such transfer was never effected in favour of Dost Muhammad, therefore, Suleman had no authority for transfer of land on the name of petitioners who are his sons. Learned counsel stated that as late Dost Muhammad has consented for transfer of the property in favour of petitioners, as such non-compliance of above condition of Power of Attorney will have no bearing on his rights. In this behalf High Court did not entertain this argument because Dost Muhammad was not factually associated in the proceedings of transferring the property in favour of petitioners by late Sulemen and we see no reason to differ with these observations of the High Court. Thus the arguments so raised in this behalf have no substance.

In view of above discussion, we see no merit in the petition as such the same is dismissed and leave to appeal is declined.

Q .M .H. /M. A.K. /M-306/S Petition dismissed.