SIRAJ DIN Versus GHULAM NABI

ABDUL HAMEED DOGAR, J. ‑‑‑This petition calls in question judgment dated 11‑7‑2002 of the Lahore High Court, Lahore, whereby Civil Revision No. 1151 of 1995 filed by the petitioners Siraj Din and others was dismissed and the concurrent findings recorded by the Courts below were maintained.

2. Facts leading to the filing of the instant petition are that Mst. Sardaran Bibi was the owner of 144 Kanals and 8 Marlas of land situated in village Naushehra Virkan, District Gujranwala. During consolidation operation, she became owner of 148 Kanals. She was alleged to have appointed Allah Ditta, father of Bashir Hussain respondent No.9, as her attorney on 28‑1‑1964 which was attested by Notary Public Syed Yousaf Ali Shah, Advocate, Sialkot. On the basis of such power of attorney, he sold the above mentioned land in favour of his son Bashir Hussain and respondent No.8 Abdul Majid, the predecessor‑in‑interest of respondents No.(i to v) on 17‑10‑1969 for a sum of Rs.7,000 vide Mutation No. 1263. On 23‑11‑1967 said Abdul Majid and Bashir Hussain sold 39 Kanals, 10 Marlas out of the above land in favour of petitioners Nos. l to 5 for a sum of Rs.1,24,000 through registered sale‑deed dated 23‑11‑1967 vide Mutation No.t347. Said Abdul Majid and Bashir Hussain again sold 106 Kanals and 18 Marlas out of the above mentioned land in favour of petitioners Nos.6 to 9 for a sum of Rs. 30,000 vide Mutation No.9 duly attested in their favour on 27‑5‑1969.

3. On 24‑4‑1990, respondents Ghulam Nabi and others, predecessors -in‑interest of Mst. Sardaran filed suit for declaration, permanent injunction and possession asserting therein that their mother Mst. Sardaran Bibi was the owner in possession of the suit‑land measuring No. 144‑K and 8‑M situated in village Naushehra Virkan. She had never appointed Allah Ditta as her attorney and the alleged general power of attorney was invalid and fictitious one and Mutation Nos.1235, 1247 and 9 were not only illegal but were attested by fraud as managed by respondent No.9 Bashir Hussain, the then Patwari.

4. The petitioners resisted the suit and filed written statement and pleaded that Mst. Sardaran Bibi had in fact executed the general power of attorney in favour of Allah Ditta who validly, alienated the land vide rgistered sale‑deeds. They being the bona fide purchaser were protected under the law and no fraud or misrepresentation of any sort was committed by them.

5. We have heard Ch. Muhammad Anwar Bhinder, learned Advocate Supreme Court for the petitioners, Mr. Naeemul Hasan Sherazi, learned Advocate Supreme Court for respondent No.3(iv) and have also gone through the record and proceedings of the case in minute particulars.

6. The learned Advocate Supreme Court for the petitioners mainly contended that the suit was obviously time‑barred and should have beet dismissed on that score alone. According to him, Mst. Sardaran Bibi died its the year 1973‑74 whereas the suit was filed by her legal heirs namely. Ghulam Nabi and others in the year 1990. According to him the power of attorney was said to have been executed by Mst. Sardaran Bibi in favour of Allah Ditta in the year 1964 on the basis of which the land in question was alienated in the year 1965. The learned Advocate Supreme Court urged that all the Courts below did not advert to this aspect of the case but condoned the delay in filing the suit mainly on the conjecture that Mst. Sardaran Bibi being an old lady had no knowledge of the forged and fraudulent power of attorney, mutations and subsequent alienations. He emphasized that in the Jamabandi record of last 20 years, the petitioners have been shown to be the owners of the land which itself is sufficient proof to conclude that they are the bona fide owners of the land and validly purchased the same through sale deed. The genuineness of general power of attorney even otherwise could not De challenged as the same was attested in accordance with law by a Notary Public under the Notary Ordinance, 1961. He lastly urged that the aforesaid mutations were attested by the competent Revenue Officer about 26 years ago as such the same could not be challenged on the ground that the permission of the Consolidation Officer was not obtained.

7. On the other side, learned Advocate Supreme Court for the respondents vehemently controverted the above contentions and contended that the power of attorney on the basis of which the impugned mutations were sanctioned was neither placed on record nor was proved through any admissible evidence. Even the alleged first Mutation No. 1263 entered in the name of respondents Nos.8 and 9 Abdul Majid and Bashir Hussain were not validly entered in the record as its sanction was made subject to the personal appearance of Mst. Sardaran Bibi vide endorsement dated 11‑10‑1965. According to learned counsel, she did not appear in person for the said attestation and on the contrary, the alleged mutation was attested on 17‑10‑1965 behind her back, thus of no legal effect. Learned Advocate Supreme Court went on to argue that the very estate where the land was situated was under consolidation proceedings at the relevant time, as such according to Rule 27 of the West Pakistan Consolidation of Holdings Ordinance, 1960, no valid title could have been transferred otherwise through a registered sale‑deed and that a mere mutation was of no legal effect. He emphasized that respondents Nos.8 and 9 were in fact the main aggrieved persons in whose favour the first mutation of sale took place on the basis of power of attorney which was subsequently declared to be illegal and void by the trial Court which admittedly was not agitated in appeal before the learned Appellate Court as such the judgment and the decree of the trial Court attained finality. In such background, the further alienations made by them in favour of the petitioners were totally illegal and without any foundation.

8. The entire case hinges upon the authenticity of alleged general power of attorney said to have been executed by Mst. Sardaran Bibi in favour of Allah Ditta. The record shows that no such general power of attorney was produced in the evidence before the trial Court as such its being in non existence, the question of its validity does not arise at all. Under section 17(b) of the Registration Act, any document that purports to create right, title or interest in immovable property requires compulsory registration. In case if it was in existence, the same should have been compulsory registered as per law and its mere attestation by the Notary Public was not sufficient to meet the requirement of the law.

9. Above all neither its subscriber S. Yasin Ali Shah, Advocate, Sialkot, the Notary Public was examined to prove its contents nor the attesting witnesses were produced to prove its genuineness. In such view of the matter, the very foundation of the case was baseless and merited to fall down and thus rightly held so by all the Courts below while deciding the matter against the petitioners. It is also established from the record that consolidation proceedings were pending at the relevant time as such the mutation of sale made in Favour of respondents Nos.8 and 9 and further alienation and subsequent mutation in favour of the petitioners in absence of registered sale‑deed and also without obtaining necessary permission of the Consolidation Officer, were illegal.

10. As regards limitation, all the Courts below have validly condoned delay in filing the suit while taking into consideration the fact that the above said mutations and alienations had taken place behind the back and knowledge of Mst. Sardaran 13ibi the original owner of the land.

11. Thus their being no justification to interfere with the concurrent findings of fact recorded by the Courts below, the impugned judgment is maintained. The petition being devoid of any force is dismissed and leave refused.

M.B.A./M‑251/S Petition dismissed.