GHULAM MURTAZA Versus ABDUL SALAM SHAH

CH. IJAZ AHMED, J.--- The brief facts out of which the present appeal arises are that land measuring 64 Kanals situated in Chak No.404/GB Tehsil Samundri, Faisalabad, was owned by Abdul Salam Shah, Abdul Sattar Shah, Umtul Hafeez, Mst. Salamat Bibi and Khurshid Bibi sons and daughters of Muhammad Siddiq Shah. Abdul Sattar Shah is father of respondents Nos.2 to 7. All the owners mentioned above executed general power of attorney in favour of Abdul Salam Shah respondent No.1 on 29-8-1981 whereas late Abdul Sattar Shah father of respondents Nos.2 to 7 had executed general power of attorney in favour of Abdul Salam on 27-2-1988. Respondent No.1 executed agreement to sell with the appellant with regard to total land measuring 64 Kanals on 30-5-1991 for consideration of Rs.6,50,000 and also received earnest money amounting to Rs.2,00,000. Respondent No.1 received remaining consideration from appellant on 15-6-1991. Abdul Sattar Shah died on 28-7-1991 leaving behind his legal heirs widow, daughters and sons. Respondents Nos.2 to 7 refused to execute registered sale-deed in favour of the appellant. Appellant being aggrieved filed suit for specific performance on 22-8-1993 in the Court of Civil Judge First Class Tandlianwala. Respondent No.1 filed consenting written statements whereas respondents Nos.2 to 7 filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties trial Court framed 11 issues. The learned trial Court dismissed the suit vide its judgment and decree dated 4-1-1997. Appellant being aggrieved filed appeal in the Court of Additional District Judge, Faisalabad who dismissed the same vide judgment and decree, dated 12-2-2001. Thereafter the appellant filed Civil Revision No.409 of 2001 in the Lahore High Court which was also dismissed vide impugned judgment, dated 21-2-2001. Appellant being aggrieved filed Civil Revision No.640-L of 2001 before this Court which was fixed on 18-4-2003 and leave was granted in the following term:--

"Leave is granted to reappraise the evidence to consider whether onus to prove execution of power of attorney in view of plea raised by the respondents that though a document was written as a power of attorney but the same related to only obtaining land on behalf of deceased Abdul Sattar from the Government and not to sell the land, continued to be on the plaintiff to prove its execution on the same and had shifted to tare respondent who had taken a plea contrary to the contents of the document."

2. Learned counsel for the appellant submits that all the Courts below had erred in law to dismiss the suit by misreading and non-reading of the record as is evident that trial Court had decided Issue No.7 in favour of the appellant and against the respondents and the finding of the trial Court on Issue No.7 was not disturbed by the Appellate Court and the High Court. He further submits that general power of attorney which was executed in favour of appellant by father of respondents Nos.2 to 7 is binding on his legal heirs and this fact was not scrutinized in its true perspective by the Court below. He further urges that specific power was given by the original owner Abdul Sattar to the respondent No.1 vide general power of attorney dated 27-2-1988 to control, manage and sell the land in question and also receive the consideration. Late Abdul Sattar Shah predecessor-in-interest. of the respondents Nos.2 to 7 had appointed respondent No.1/defendant No.1 Abdul Salam Shah as his attorney and authorised him to dispose of the property of the deceased. Therefore, respondent No.1/defendant No.1 was competent to execute the agreement to sell in favour of the appellant/plaintiff. He further urges that the execution of power of attorney was admitted by the respondents in their written statements and this fact was not considered by the Courts below in its true perspective.

3. Learned counsel for respondents Nos.2 to 7 has supported the impugned judgment and stated that all the Courts below had concurrently decided against appellant after proper appreciation of evidence on record. He further maintains that respondents Nos.2 to 7 admitted the power of attorney to the extent that their father had given power of attorney to respondent No.1 to control and manage all the property and had not given any authority to him to sell the land in question and this fact was duly considered by all the Courts below. He further maintains that all the Courts below had non-suited appellant after appreciation of evidence on record qua Issues Nos.5 and 6 and found that consideration of the land in question to the extent of share of their father was not paid to him or to his legal heirs, respondents Nos.2 to 7. In support of his contention he relied upon Fida Muhammad v. Muhammad Khan PLD 1985 SC 341 and Maqsood Ahmad v. Salman Ali PLD 2003 SC 31.

4. We have considered the submissions made by counsel for the parties and perused the record. It is pertinent to mention here that trial Court after proper appreciation of evidence on Issues Nos.5 and 6 had given findings of fact against the appellant as evident from paras.10 to 13 of the judgment of the trial Court. The relevant finding is as follows:

"So far as the execution of general power of attorney is concerned the same is admitted. Defendant No.2 is widow and a lady whereas defendants 4 to 7 are minors. But taking judicial notice of the said document Exh.P.3, I am of the opinion that the genuineness of this power of attorney is doubtful for the reason that the signatures of Abdul Sattar deceased on this document do not tally each other. There is visible difference in the signatures of the deceased. Further from the endorsement on the book of the general power of attorney the Sub-Registrar has affixed the stamp showing the attestation of a sale-deed and not the general power of attorney

As the defendants Nos.2 to 7 have denied the authority of defendant No.1 in respect of the alienation of the land he was under legal obligation to prove that the agreement to sell was with the consent of Abdul Sattar Shah deceased or that the same was within his knowledge and also that he had passed on the sale consideration to him after receiving the same from the plaintiff. As mentioned above not on iota of evidence has been produced by the plaintiff or defendant No.1 in this respect. In view of the above discussion I hold that as the defendant No.1 had no authority of alienation of the land of the deceased the agreement to sell executed by him in favour of the plaintiff in respect of the transfer of the land in dispute the plaintiff is not entitled to the decree for specific performance of the same."

5. The aforesaid finding was upheld by the First Appellate Court with cogent reasons after reappraisal of evidence on record as evident from paras.9 and 10 of the judgment of the First Appellate Court. The said finding was thereafter reaffirmed by the High Court after reappraisal of evidence on record as evident from para.4 of the impugned judgment. In the interest of justice and (airplay, we have examined the record with the assistance of the learned counsel for the parties. It is better to reproduce operative part of the general power of attorney executed in favour of respondent No.1 by the father of respondents Nos.2 to 7, operative part of the plaint and written statement to resolve the controversy between the parties:

General power of attorney:--

6. It is settled law that document must be read as a whole as law laid down by this Court in the following judgments:--

(i) Mian Nawaz Sharif's case PLD 1993 SC 473, (ii) Hakim Ali's case PLD 1992 SC 595 and (iii) Reference by the President PLD 1957 SC 219.

7. In case the document in question i.e. general power of attorney be read as a whole, then it is crystal clear that respondent No. 1 was not authorized by the father of respondents Nos.2 to 7 to sell the land in question as law laid down by this Court in Imam Din v. Bashir Ahmed PLD 2005 SC 418 the relevant observation is as follows:--

"In view of nature of authority, the power of attorney must be strictly construed and proved and further the object and scope of the power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for, enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule that before an act purported to be done under the power of attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument."

8. All the Courts below had given finding of fact against the appellant that appellant had failed to prove the contents of the general power of attorney through reliable evidence on record in terms of law 'laid down by this Court in the aforesaid judgment. It is the duty and obligation of the appellant to prove the contents of the general power of attorney being the beneficiary to the extent that respondent No.1 was duly authorized by the father of respondents Nos.2 to 7 to sell the land in question as law laid down by this Court in Maqsood Ahmad v. Salman Ali PLD 2003 SC 31. It is admitted fact that learned High Court had refused to interfere in the concurrent conclusion arrived at by the Courts below while exercising power under section 115, C.P.C. The impugned judgment of the learned High Court is in consonance with the law laid down by this Court in various pronouncements. See Guldar Khan's case 1993 SCMR 2099; Nazir Ahmad's case 1989 SCMR 450; Riaz's case 1989. SCMR 1491 and Haji Muhammad Din's case PLD 1994 SC 291. There is concurrent finding of three Courts on a question of fact and this Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below in exercise of the power under Article 185(3) of the Constitution. The learned counsel for the appellant has failed to point out any infirmity or illegality in the impugned judgment. The appeal has no merit and the same is dismissed.

M.H./G-13/SC Appeal dismissed.