RAMZAN Versus LARA

On 23‑7‑1980 the petitioners filed a suit against the respondents. In the plaint it was stated that respondent No. 1, a claimant displaced person, was allotted 5765 units of evacuee land: He had got adjusted 5557 units. Regarding the balance 208 units he entered into an agreement with the petitioner No. l and defendant/respondent No. 2. The price of the said units was settled at Rs.1,664 which was paid to respondent No. l by the petitioner No.l and respondent No.2. Respondent No.1 also agreed to appoint respondent No.2 as his general attorney for carrying out the purposes of the said agreement. Having thus, agreed to sell the said units and receiving price for the same respondent No. 2 executed an agreement dated 1‑11‑1963 as also a general power of ‑attorney in favour of respondent No.2 which was registered on 6‑11‑1963. Acting under the said arrangement land measuring 64 Kanals, 5 Marlas against 108 units was got confirmed in village Lambay Khalisa and respondent No.1 got Mutation No.348 attested in. favour of respondent No.2 on 29‑1‑1964. Similarly land measuring 59 Kanlas, 16 Marlas was got confirmed against the remaining 100 units on 13‑2‑1964. The allotment was accepted by respondent No.2 acting as general attorney of respondent No. l who transferred land in favour of petitioners and Mutation No.212 was got. entered on 8‑3‑1964.. At this juncture respondent No.2 proceeded to cancel the general power of attorney and appeared before the Revenue Officer on 15‑4‑1964 and got the same cancelled on 15‑5‑1964. The petitioners who had been delivered possession of the land continued in possession. A Punchait was convened where respondent No. l agreed that he will get the mutation attested if he was paid some more money. The petitioners had to agree to the said proposal. Consequently, Mutation No.264 was entered. It was taken,up by the Revenue Officer on 1‑12‑1965 when the parties made their statement. The mutation was attested on 23‑12‑1965 and the petitioners paid an extra amount of Rs.700 to respondent No.1. However, respondent No.1 applied for review of the mutation. His application was rejected by the Revenue Officer on 18‑5‑1967. He then filed an appeal which was allowed by the learned Collector on 5‑7-1968. With these averments a decree for declaration was sought that the petitioners are exclusive .and absolute owners of the suit land and that a perpetual injunction by restraining respondent from interfering with possession of the petitioners. In the alternate a prayer was made for recovery of the entire money received by the respondent No. l from them and also a direction to respondent No. l to compensate them for improvements made on the land.

2. The suit was contested by respondent No. l who raised several objections. On merits he admitted having executed the power of attorney in favour of respondent No. l for the purpose of the said 208 units. He did not deny the execution of the agreement and had stated that the agreement has not been properly stamped and is not valid as it pertains to units. He also stated that the mutation in favour of respondent No.2 is bogus regarding the land allotted in village Lambay. Regarding Mutation No.212 he stated that it was got entered by his attorney but thereafter he cancelled the power of attorney: He denied having appeared before the Revenue Officer in the matter of Mutation No.264. Following issues were framed:‑--

(1) Whether the form of the suit is incorrect? OPD

(2) Whether the contract between the parties is void.?

(3) Whether this Court has no jurisdiction to try the suit? OPD.

(4) Whether the valuation of the suit for the purposes of court‑fee and jurisdiction is wrong? OPD.

(5) Whether the agreement has been properly stamped, if not what is its effect? OPD.

(6) Whether the defendant No. l is entitled to special costs? OPD.

(7) Whether the sale is hit. by M.L.R. No.64? OPD.

(8) Whether the defendant No.2 has no authority to convey the suit land in favour of the plaintiffs?

(9) Whether the plaintiffs obtained the suit land by way of sale from the defendants? OPD.

(10) Relief.

Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 17‑12‑1980. A first appeal filed by the petitioners was dismissed by a learned Additional District Judge on 27‑11‑1984. A Civil Revision filed by the petitioners, however, was allowed by this Court and the appeal was remanded back for fresh decision. The appeal was then heard by a learned Additional District Judge, Kasur who dismissed the same on 20‑1‑1988.

3. Learned counsel for the petitioners contends that the learned lower Courts have misread the pleadings as also the evidence on record while passing the impugned judgments and decrees and the same are not sustainable. Learned counsel for respondent No. 1, on the other hand, supports the impugned judgments and decrees.

4. I have gone through the copies of the records appended with this Civil Revision, with the assistance of the learned counsel for the parties. The execution of the general powers of attorney (Exh.P.10) alongwith its contents is admitted by respondent No. 1. The agreement, dated 1‑11‑1963 is available on record Exh.P.1. In this agreement respondent No.1 acknowledged the receipt of the price of 208 units and promised that the general attorney i.e. respondent No.2 shall get the land confirmed in lieu of the units and that either he will himself transfer the land in favour of Muhammad Ramzan etc., or his attorney will transfer the land in favour of Ramzan etc.

5. As stated 'by me earlier the execution of these documents has not been denied. The legal objections raised are covered by Issues Nos.2, 5 and 7. All these three issues were found in favour of the petitioners by the learned trial Court. The learned first appellate Court has not observed in its judgment and these findings were not questioned before it and consequently it upheld the said findings.

6. The power of attorney admittedly executed by respondent No. l in favour of respondent No.2 is on record as Exh.P.2. It does authorise respondent No.2 to alienate the suit land.

7. Issue No. l relates to the forms of the suit. Both the learned Courts below have held that since the basic document forming the foundation of the suit is the agreement Exh.P.1 and the grievance is that respondent No. l is bound to perform his part of the contract, the only suit competent in the circumstances was a suit for specific performance of the contract. I find that the petitioners had filed an application before the learned Additional District Judge on 27‑9‑1987 praying that they be allowed to amend the plaint so as to enable them to ask the relief of specific performance of the said agreement. This application was contested and the learned Additional District Judge proceeded to dismiss the same on 20‑1‑1988 on the ground that there has been a delay of several years in making the application and that the proposed amendment would be tantamount to allowing the petitioners to make out a new case. I find that the said order of the Additional District Judge dated 20‑1‑1988 is violative of the principles laid down in the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 Supreme Court 345). I have, examined the application. The only amendment sought is regarding the said relief on the basis of pleadings already on record and it cannot be said that it will be changing the nature or complexion of the suit or it would constitute the change of cause of action. I, therefore, set aside the said order of learned Additional District Judge and allow the petitioners the said amendment in the plaint.

8. Now despite the fact that there is no specific denial of the agreement in their written statement and also no issue was claimed by any of the parties on the question of execution, the trial Court proceeded to examine the question as to whether EXh.P.1 had been executed by respondent No. l or not. The relevant pieces of evidence regarding this aspect of the case are the statement of Shahab Din, Stamp Vendor, Najmul Hassan, petition‑writer, Khushi Muhammad, Marginal witness and Kallu Khan, P.W.5. Regarding the Stamp Vendor and the petition‑writer I will not be commenting much as these are more or less formal witnesses, one proving the sale of the stamp in the form of Exhs.P.1. and P.2 and the other having scribed Exhs.P.1. and P.2. It is also correct that Kallu Khan, D.W.5 although admitted being a marginal witness power of attorney Exh.P.2 but he stated that he is not a witness of agreement Exh.P.1.

9. Khushi Muhammad, P.W.3, however, specifically stated that he is Lumbardar and that he knows the parties. The exact words he stated regarding execution of agreement are reproduced here:‑‑

Now both the learned Courts below have observed that he did not state that Dana had executed the agreement EXh.P.1. To my mind, the agreement, Exh.P.1 was not a document which was required by law to be attested. Needless to state that the document was executed long before enforcement of the Qanun‑e‑Shahadat Order, 1984 Article 17). Thus, the insistence of the learned Courts below that the witness should have made a statement in accord with definition of attestation as contained in the Transfer. of Property Act, 1882 is rather misplaced. The witness obviously is a villager. In any event in plain language the said statement means that Dara got the agreement Exh.P.1 written in favour of petitioner No. l and respondent No.2. What is important is that not a single question was put to this witness in the cross-examination as to any of the facts deposed by him in his examination‑in -chief. Thus, it will be deemed that respondent No. l had accepted the said statement of this witness.

10. Now coming to rebuttal D.W.2 Umar Hayat is the son of respondent No.1 and his special attorney vide power of attorney Exh.D.2. Like his father who opted to remain silent as to the execution of the agreement in his written statement he did not utter a word that agreement Exh. P.1 had not been executed by his .father. In his cross‑examination he admitted the possession of the petitioners. He admitted that the land was Banjar and that the petitioners had started cultivating it and had planted a garden there. He admits that he accompanied his father to Chunian where the power of attorney was executed. In reply to the question regarding the agreement he states as under:‑‑

Thus, there is no denial of the agreement Exh.PA either in the pleadings or in the evidence of the respondents and the learned Courts below have acted with material irregularity in assuming that the execution had been denied and then proceeded to misread the evidence on record pertaining to the execution of the agreement.

11. To my mind reference to .the later mutations would be of no relevance. Suffice it to state that so far as the first mutation i.e. Mutation No.212 is concerned, admittedly it was got entered by the lawfully appointed attorney of respondent No, l in favour of the petitioners. It was after the said event i.e. a completed transaction‑had been entered and reported to the Patwari that respondent No.2 proceeded to cancel the power of attorney. The Revenue Officer, therefore, had no lawful authority to cancel the mutation. Reference may be made to the case Syed Humayun Zaidi and 4 others v. Mst. Hussain Afroza (1999 SCMR 2718). This was a case of specific performance of the agreement. The agreement had been executed by an attorney but thereafter his power of attorney was cancelled. Their Lordships upheld interference by the learned Peshawar High Court with concurrent judgments of the learned Courts below and passing a decree for specific performance while holding that the donor is bound by the lawful acts of the attorney so long as he remains so appointed.

12. There is yet another aspect of the case. In view of the proved, rather admitted fact that the power of attorney as well as agreement were executed by respondent No. 1. To my mind, it is doubtful as to whether at all respondent No.2 was entitled to revoke the power of attorney as on the face of it, it was coupled with interest, in view of the provisions of section. 202 of the Contract Act, 1872.

13. Agreement Exh.P.1 having been executed by respondent No. 1, the petitioners having performed their part of the contract and being, in possession in part performance, are entitled to the specific performance of the same.

14. This Civil Revision is accordingly allowed. The judgments and decree of both the learned Courts below are set aside and the suit of the petitioners is decreed and they are granted a decree for specific performance of an agreement to sell dated 1‑11‑1963. Respondent No.1 shall execute sale‑deed transferring the suit land in favour of petitioner No.1 and in case he fails to do so the Executing Court shall appoint an official of the Court to do the needful. No order as to costs.

Q.M.H./M.A.K./R‑45/L Revision allowed.